Hugo Grotius (15831645). The Rights of War and Peace. 1901.
Chapter XXI: On the Communication of Punishment
How accessories are liable to punishmentSovereign Princes or States answerable for the misconduct of their subjects, when they know it, and do not endeavour to prevent itSovereigns bound not to protect offending subjects, but to deliver them up or punish themThe rights of suppliants belong to the unfortunate and not to the guiltySuppliants may be protected while the inquiry into their case is still pendingHow far states are amenable to punishmentAll the different exceptions statedChildren not answerable for the offences of parentsThe moral government of God in this respect consideredIndividuals not answerable for offences, to which they have not given consentHeirs, how far answerable for the acts of their ancestors.
I. THE NEXT topic of inquiry relates to the communication of punishment, as inflicted upon accomplices, who, in that capacity, cannot be said to be punished for the guilt of others, but for their own. And from what has been said above upon the loss sustained from injury, it may be understood who are the persons, that come under this description. For the partnership in loss, and the partnership in guilt are regulated by nearly the same principles. Yet the obligation to repair a loss does not always imply guilt, except where there has been any notorious malice, in which case every damage renders the party, who has occasioned it, liable to make reparation. So that persons ordering the commission of any wicked or hostile act, giving the requisite consent to it, supplying the aggressor with assistance, or protection, or, in any other shape, partaking of the crime, by giving counsel, commendation, or assent to his act, or when they have power to forbid the commission of such an act, by forbearing to exercise their authority, or by refusing to afford the succour, which they are bound by the law of nature, or by treaty to give to the injured party, by not using with the offender that power of dissuasion, which they have a right to do, or lastly by concealing what they ought to make known, in all these cases, such persons are punishable as accomplices, if they are convicted of that degree of malice, which constitutes a crime, and merits punishment: points which have before been discussed.
II. The case will be made clearer by examples. A civil community is no more bound than any other society by an act of individual members, except that act be done by its express consent and authority, or it has neglected to disavow such a proceeding. Hence it is formally stipulated in almost all treaties that no acts or aggressions are to be ascribed to a state, except those, which are done in the name of the sovereign, and by persons acting expressly under the authority of his commission. So a father is not answerable for the misconduct of his children, a master for that of his servants, nor a ruler for the acts of those under him, unless there appears in any of these some connivance, or encouragement in promoting that misconduct, or those acts.
In the case of a sovereigns responsibility for the acts of his subjects, there are two things to be considered, which require minute inquiry, and mature deliberation, and those are the forbearance, and the encouragement or protection, which he has shewn to their transgressions.
As to forbearance, it is an acknowledged point, that when he knows of a delinquency, which he neither forbids nor punishes, when he is both able and bound to do so, he becomes an accessory to the guilt thereof. Cicero, in his speech against Piso, says, it makes no great difference especially in a consul, whether he harasses the government by moving ruinous laws, and making mischievous speeches, or suffers others to do the same. If a slave has committed a murder with the knowledge of his master, the master becomes answerable for the entire deed, as it was done with his concurrence.
But, as we have said before, besides the knowledge of a deed, to constitute a participation in the guilt, the person so knowing it, must posses the power to prevent it. And this is what is meant by the legal phrase, that the knowledge of a crime, when it is ordered to be punished, is taken in the sense of forbearance or connivance, and it is supposed that the person, who ought to have prevented it, did not do so. In this place knowledge implies a concurrence of will, and connivance a concurrence of design. A master therefore is not bound by the act of a slave, who has claimed his freedom, and done any thing in despite of his master, because the knowledge of a crime without ability to prevent it, by disclosure or some other means, cannot be construed into an act of guilt. So parents are bound by the acts of children; but only in cases where they have the children under their authority. On the other hand, altho by having them in their power, they might have prevented their misconduct, they will not be answerable for it, unless they had a knowledge of it also. For there ought to be a concurrence of knowledge, and forbearance or encouragement to involve any one in the guilt of anothers actions; circumstances all of which by a parity of reasoning may be applied to the connection between sovereigns and subjects: a connection founded on principles both of natural and civil law.
III. The matter that necessarily comes next under consideration is the case of those, who screen delinquents from punishment. It was before observed that, according to the law of nature, no one could inflict punishment, but a person entirely free from the guilt of the crime which he was going to punish. But since established governments were formed, it has been a settled rule, to leave the offences of individuals, which affect their own community, to those states themselves, or to their rulers, to punish or pardon them at their discretion. But they have not the same plenary authority, or discreation, respecting offences, which affect society at large, and which other independent states or their rulers have a right to punish, in the same manner, as in every country popular actions are allowed for certain misdemeanors. Much less is any state at liberty to pass over in any of its subjects crimes affecting other independent states or sovereigns. On which account any sovereign state or prince has a right to require another power to punish any of its subjects offending in the above named respect: a right essential to the dignity and security of all governments.
IV. But as it is not usual for one state to allow the armed force of another to enter her territories under the pretext of inflicting punishment upon an offender, it is necessary that the power, in whose kingdom an offender resides, should upon the complaint of the aggrieved party, either punish him itself, or deliver him up to the discretion of that party. Innumerable instances of such demands to deliver up offenders occur both in sacred and profane history. Thus the other Israelites required the Benjamites to deliver up offenders, Jud. xx.And the Philistines demanded of the Hebrews the surrender of Samson, as a criminal, Jud. xv.In the same manner the Gauls made a demand that the Fabii should be surrendered for having fought against them. Sylla too, as Sallust informs us, urged Bocchus to deliver up Jugurtha, and by so doing to relieve the Romans from the bitter necessity of implicating HIM for his erroneous conduct in the same guilt with that most desperate villain. Yet all these instances are to be understood not as strictly binding a people or Sovereign Prince to the actual surrender of offenders, but allowing them the alternative of either punishing or delivering them up. For it was upon this ground, as we are informed, that the Eleans made war upon the Lacedaemonians, because the latter neglected to punish their subjects, who had committed aggressions upon that people; that is, they had neither punished nor delivered them up: for the obligation may be taken either way, that being left to the choice of the aggrieved person, or nation, in order to make the satisfaction the more complete.
The surrender here meant is nothing more than delivering up a citizen or subject to the power of another state to decide upon his punishment. But this permission neither gives nor takes away any right, it only removes an impediment to the prosecution of a right. Wherefore if that other people make no use of the permitted right, the offender, who has been delivered up, is in such a situation, that he either MAY or may NOT be punished: either of which may happen in the case of many offences. But the right of a state, as to the enjoyment of its own laws, and many other advantages, is not lost by any particular act without a formal decree and judgment, unless in any way it has been previously enacted, that certain acts, or certain omissions, shall amount to a forfeiture of some particular rights and privileges. In the same manner, goods, if surrendered, but not accepted, will remain the property of the former owner. But if the surrender of a citizen has been accepted, and, by some accident, the person so surrendered shall afterwards return home, he will no longer be a citizen, except by some new act of grace. What has been said of punishing or giving up aggressors, applies not only to those, who always have been subjects of the sovereign, in whose dominions they are now found, but to those also, who, after the commission of a crime, have fled to some place for refuge.
V. Nor do the so much talked of rights of suppliants, and the inviolable nature of asylums at all weaken the argument that has been advanced. For the advantages of such protection are designed only for those, who are the victims of unmerited persecution, not for those who have committed crimes injurious to mankind, and destructive to society. Gylippus, the Lacedaemonian, as may be seen in the xiii. book of Diodorus Siculus, speaking of the rights of suppliants, says, that they were originally introduced, as measures of compassion to the unfortunate, and not a screen for malicious and wanton offenders, who have nothing but punishment to expect. And a little after he says, when such men, prompted by malice, or rapacity have plunged into evils, they have no right to talk of misfortune or to wear the name of suppliants. For that is a privilege granted by the laws of nature to the innocent, who are beaten down by the hard and oppressive strokes of ill fortune. But the refuge of compassion is withheld, where every line of a life has been marked with cruelty and injustice. Thus according to that law, which partakes of the wisdom of its divine author, asylums were open to those who had killed any one by a weapon escaping from their hand: slaves too were allowed places of refuge, but deliberate murderers, or those, who had disturbed the peaceful order of the state, found no protection even from the altar of God. Philo, in explaining this law says, that even the temple affords no refuge to the impious.
The more ancient of the Greeks acted upon the same principle. It is said that the Chalcidians refused to deliver up Nauplius to the Grecians, and the reason alleged was his having cleared himself of the charges made against him. There was amoung the Athenians an altar dedicated to Mercy; it is mentioned by Cicero, Pausanias, Servius, and also by Theophilus, and it is described at full length by Statius in the xii. book of his Thebais. The poet explains to what description of men it afforded shelter: it was, he says, to those who were driven from their homes by the calamity of war, or stripped of their kingdoms by usurpers. Tacitus in the third book of his Annals, and 60th chapter, reprobates the custom, prevailing in his time among the cities of Greece, of making it an act of religion to protect offenders from the punishment due to their crimes. Such offenders therefore ought either to be punished, or delivered up, or, at least, ordered to withdraw. Perseus the Macedonian king, clearing himself to Martius from the charge of screening those, who had attempted the life of Eumenes; said, as soon as I was apprised by you of their being in Macedonia, I ordered immediate search to be made for them, peremptorily commanding their perpetual banishment from my kingdom.
The right of demanding the surrender or punishment of criminals that have fled into other kingdoms, has, in most parts of Europe, during the present, and the immediately preceding centuries, been generally exercised in cases, where the crimes were such as affected the safety of the state, or were attended with notorious atrocity. It has been usual to pass over, with mutual connivance, crimes of an inferior kind, except where it has been agreed to the contrary by express treaty. Nor can it be concealed that where robbers and pirates have gained a truly formidable power, it has often been deemed an act of humane policy both in Sovereign Princes, and States to exercise forbearance towards them, rather than to drive them to greater acts of desperation by treating them with all the rigour, which they deserve.
VI. If the act, of which refugees and suppliants are accused, is not prohibited by the law of nature or of nations, the matter must be decided by the civil law of the country, from which they come. This was a received opinion in ancient times, as we find from the language of Aeschylus, in whose Tragedy of the Suppliants, the King of Argos, addressing a number of the daughters of Danaus, on their coming from Egypt, says, If the sons of Egypt exercise controul over you, maintaining that they are authorised to do so by the law of the state, as being the nearest allied by blood, who can resist them? It is for you to prove that, according to the laws of your country, they have no authority over you.
It was shewn in a former part of this treatise, that a body politic though it may seem to vary by a succession of new members, continues the same, as long as it retains its form. In which case it seems liable to punishment no less than individuals. On the other hand bodies politic seem to possess many privileges peculiar to themselves, such as having a common treasury, a common seal, laws, and other similar advantages. But there are some distinctions, which they particularly derive from the INDIVIDUALS of which they are composed. Thus we say that Universities are learned, or Garrisons brave, according to the number of learned or gallant men, which they respectively contain. Merit is a distinction of this kind, as being a gift of nature to individuals, or an individual acquirement, which no public body, OF ITSELF, can have. So that upon the death or departure of those meritorious individuals, the degree of merit, which any public society derived from their presence, must become extinct. In the same manner, the debt of punishment which is considered as arising from some act of demerit, must cease with the debt of the individual delinquents.
Arrian is justly commended for censuring the vengeance retorted upon the Persians by Alexander, at a time, when those, who had committed the original aggressions on the Greeks, had long been laid in their graves. He passes a like sentence upon the burning of Persepolis, as a retaliation for what the Persians had done at Athens. Such acts of retaliation, after a lapse of years, have been vindicated by some writers, as an imitation of the slow, but unerring progress of divine justice. But we must remember that the ways of God are not as our ways, nor is the exercise of his justice to be measured by our counsels. For if descendents can claim no merit for the actions of their FOREFATHERS, neither is it right they should be punished for THEIR transgressions. The consequences of merit indeed may be transmitted without injury, and therefore without injustice; but it is not so with punishments.
IX. Having thus shewn that a communication of punishment is necessarily connected with a participation in guilt, it remains to consider whether punishment can be extended to those, who are no way concerned in the crime. In order to understand this clearly, and to prevent the mistakes that may arise from a similarity of expression, where there is no similarity of facts, it will be necessary to make use of some precautions.
X. In the first place there is a difference between a loss DIRECTLY occasioned by any act, and one resulting but INDIRECTLY from it. Now it may be called a direct injury to deprive any one of what peculiarly belongs to him as his right. An indirect injury is that which prevents any one from possessing what he otherwise would have done, by destroying the condition or means, which gave him such a right. As an example, Ulpian says, if any one has opened a well in his own ground, by which the subterraneous streams of water, that would have passed to the lands of another, are cut off, here no fault is imputable to the person who has only exercised his own right. And in another place, he says, it makes a great difference, whether any one directly does an injury, or is only indirectly and unintentionally instrumental in preventing another from reaping advantages, which he would otherwise have enjoyed. And it is absurd, says Paulus, another legal authority, for men to be called rich before they possess the means of being so. Thus when the property of parents is forfeited, it is felt as an inconvenience by their children; though it can not be considered as a direct punishment inflicted upon them, because that property would never have been theirs, unless the parents had retained it to their last breath. On which Alphenus has made a just observation, in saying, that, by the punishment of the father, children lose that which would have come to them from him, but things, which they do not receive from him, such as the gifts of nature, or those derived from any other quarter, remain untouched. Cicero relates that in this manner the children of Themistocles were reduced to want, nor does he think it unjust that the children of Lepidus should share the same fate. And he says that it is an ancient custom, and the received usage of all states, the hardship of which nevertheless was greatly softened by the laws of Rome at a later period. Thus when a whole people is implicated in the misconduct of the majority, which holds the representative character of the state, and consequently loses its civil liberties, its fortifications, and other privileges, the loss affects innocent individuals, but only in those things, which they could not have enjoyed, except as belonging to that community.
XI. Besides, we must observe, that the offence of one man may sometimes occasion inconvenience or loss to another, and yet that offence may not be considered as the immediate cause of the action, which is grounded on the exercise of a right. This may be explained by an example. Thus if any one has engaged for anothers debt, he brings himself into the dilemma named in the ancient proverb, that being bound for any one is the next stage to ruin; but it is a MANS OWN PROMISE, and NOT ANOTHERS HAVING INCURRED A DEBT, that is the real cause of his obligation. For as a person, who has given security for a purchaser, is not, properly speaking, bound by the PURCHASE, but by his own PROMISE: so if any one has engaged to be responsible for a delinquent, it is his own ENGAGEMENT, and not the ACT OF THAT DELINQUENT, which creates his obligation. And hence the inconvenience of that kind which any one incurs, must be measured not by the delinquency of another, but by his own power to enter into any such voluntary engagement. In consequence of which no one can give surety to suffer death for another; because no one has such power over his own life, as to take it away himself, or to be bound to forfeit it for another. Though the ancient Greeks and Romans thought otherwise, and therefore they maintained that a surety might be put to death for any one, as may be seen in the well known story of Damon and Pythias, and hostages were frequently punished in this manner.
What has been said of life may be applied to the limbs also, which no man has a right to part with, except for the preservation of the whole body. But if any one has engaged to suffer banishment, to submit to a pecuniary fine, or any other means of satisfying justice, any thing he suffers on this account will not, strictly speaking, be considered as a PERSONAL punishment, but as the performance of an agreement.
Something like this occurs in the right, which any one possesses dependent on anothers will, both with respect to the right of individuals to private property, and to the more extensive right to demesnes possessed by a state. For if any one is deprived of such a thing owing to anothers fault, here the executive power depriving that person, is not inflicting a punishment on HIM, but only exercising a prior right.
XII. and XIII. Having laid down these distinctions, we may observe that it is impossible that an innocent person should suffer for anothers crime. This does not proceed from the reasons given by Paulus, who maintains that punishment is designed for the reformation of the offender. For it seems possible that an example may be made, extending beyond the person of the criminal himself, when it affects, in its consequences, those, who are nearly related to him. So that it is not for the sake of example only that punishment is inflicted, but because the obligation thereto arises from the demerit of the offending party. Now every demerit must be of a personal nature, as it proceeds from a mans own will, over which he is supposed to exercise a perfect controul.
XIV. In the law given to the Hebrews, God threatens to avenge the impiety of fathers upon their children. But he has sovereign dominion over our lives and substance, as being his gift, which he may take away from any one, whenever he pleases, without assigning his reasons. Therefore if he thinks proper to take away by a premature or violent death the children of Achan, Saul, Jeroboam or Ahab, he is exercising over them the right of sovereignty, as well as that of punishment; imposing by that awful example the more severe penalty upon the parents. For if they survive their children, which was what the divine law had most in view, and therefore did not extend these threats beyond the time of great grand-children, a period to which the age of man might reach, it is certain that parents would be severely punished by such a sight, the most afflicting of any they could witness. Or if they should not survive such an event, to die under such an apprehension would be a great calamity.
But it is proper to remark that examples like those are never employed by God, except against crimes affecting his divine Majesty, as false worship, perjury or sacrilege. Indeed those threats of divine vengeance are not always enforced; especially where any extraordinary virtue shines in the characters and conduct of the children: as may be seen in the xviii. chapter of the prophesy of Ezekiel. Plutarch has discussed this topic with great eloquence in his book on the remote vengeance of God.
As the Gospel so clearly unfolds the future punishments of the wicked, all the threats contained in that new covenant terminate in the persons of the offenders themselves. But the ways of providence in these respects are not the rule which men can follow. For God, even without any reference to crime, is the sovereign lord and disposer of human life, a commission which man is only allowed to execute against the perpetrators of certain crimes. Wherefore as that same divine law forbids parents to be put to death for the offences of children, so it exempts children from the same punishment for the actions of their fathers: a lenity which is greatly commended by Josephus and Philo. The same commendation is bestowed by Isocrates upon the laws of Egypt; and by Dionysius of Halicarnassus upon those of Rome.
XV. But if it is unjust in human laws to punish the misconduct of parents in the persons of their children, how much more severe was the law of the Persians and Macedonians extending the penalties for crimes against the state to every branch of the offenders relatives, in the most remote degree, a law surpassing all others in rigour?
XVI. XVII. and XVIII. What has been said respecting the punishment of children for the offences of their fathers of forefathers, may be applied to the relation subsisting between sovereigns and subjects. For it is a relation springing from the contract of society, which makes the sovereign the essential head, life and soul of that body, in which his people form the members. As the civil community therefore with its sovereign or head forms but one body, there can be no separation of interests, but what affects one part must be prejudicial or serviceable to the whole.
XIX. Why should an heir, it has been sometimes asked, be bound by other debts of his ancester, and not feel the effects of his punishment for misconduct? to which answer may be given, that the heir represents the person of the deceased not in his merits or demerits, which are purely personal, but in his property; an artificial mode of preserving unbroken the chain of succession and descent.
XX. And hence it follows, that if in addition to the demerit of an offence, any new grounds of obligation should arise connected with the punishment, they must be discharged not properly as a punishment, but as a debt. Thus the heir will be liable to pay the costs awarded by a judgment after a contested suit, which is considered in the light of a contract.