Chapter 20c


June 21, 2022

Part 25:

There are 2 reasons for releasing any one from the penalties of the law

  • internal
  • external.

An internal reason, to justify a departure from the sentence of the law, must be one, where the punishment is severe when compared with the offence.

Part 26:

An external reason is one arising from some favourable circumstance in the character of the offender, or some fair hopes that may be entertained of his future conduct. And these reasons will have the most weight in cases, where the particular motives for making the law cease to operate. For although a general reason,239 unopposed by any other of a weightier kind, may sufficiently authorise the enaction of a law; yet where the peculiar reason, for which that law was made, has ceased to exist, the relaxation of it, or even a total dispensation will be attended with less danger to the universal authority of law in general.

Such a dispensation indeed is most allowable, where an offence has been committed through ignorance, though the party so committing it is not entirely free from blame, or through some invincible infirmity of mind, in all which cases, a Christian ruler will have an eye to the example of God, who, under the old covenant, appointed many such offences to be atoned for by certain expiatory offerings: Levit. iv. and v.: and, in the New Testament, he has expressly declared his intention to pardon such offences, upon due repentance. Luke xxiii. 34.; Heb. iv. 15. and v. 2.; 1 Tim. 1. 13. And Chrysostom observes, that Theodosius, impressed with those words of our Saviour, “Father, forgive them, for they know not what they do,” was led to grant a pardon to the people of Antioch.

Part 27:

Ferdinand Vasquez is mistaken in his judgment when he maintains that there can be no just reason for releasing anyone from its obligations, except where the lawgiver, upon being consulted, expressly declares that he never intended it should be observed to its full extent.

For he does not make the proper distinction between an equitable interpretation, and the entire relaxation of a law. For which reason, in another place, he reproves Thomas, and Sotus, because they say that a law is binding although the particular reason of its being made may have ceased, as if they supposed that the mere letter of the law was the source of its obligation, an opinion which they never did entertain. So far from every relaxation coming under the idea of equity, properly so called; those relaxations may be freely granted or refused, which could not be done in matters of equity, to which even acts of charity or those of reasonable policy do not strictly belong. For there is a great difference between the repeal of a law upon fair or urgent grounds, and a legislator’s declaring that at the time of passing the law he had not the particular offence or case in contemplation.

Having thus far considered the nature of dispensations, we proceed to a review of the merits upon which they may be granted.

Part 28:

In punishments, 2 things are to be regarded:

  1. The offence, and
  2. The object for which they are inflicted.

It is consonant to justice that no one should receive greater punishment than he deserves; upon which Cicero, in one of his letters, observes, that, “the same moderation, which is commended in all other things, ought to be observed in punishments.”

Papinian therefore calls punishment an estimation of demerit; but this equality established between crime and punishment, says Demosthenes in his Letter in behalf of the children of Lycurgus, is not the only thing to be considered: the object and intention also of the delinquent must be weighed and taken into the account. But, if care be taken to inflict no more punishment than is due for an offence; it may be greater or less, in proportion to the utility to be derived from thence.

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

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

Besides the desire of avoiding evil there are other desires tending to some good, either real or imaginary.241 Real advantages, considered apart from virtues, and those actions, which have a virtuous tendency, are either such as give delight themselves, or, like abundance of riches, can procure those things, which administer to pleasure. Among advantages purely imaginary, we may reckon that of desiring to excel others, from a spirit of rivalry, rather than from any laudable intention, or the power of gratifying resentments, which the farther they deviate from natural justice the more shocking they are to natural feeling. These appetites the Apostle has described in terms of marked censure, calling them, the “lust of the flesh, the lust of the eye, the pride of life.” Here the first member of the sentence expresses the love of pleasure, the second implies the insatiable love of riches, and the third comprehends the pursuit of vain glory, and the desire of revenge.

Part 30:

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

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

Some are of opinion that a more accurate order of division might have been used; but that which is here followed is the same used by God himself in the delivery of his commandments. For under the name of parents242 are included not only those, who are naturally such, but sovereign princes, magistrates, and rulers of every description, whose authority is the key-stone of the fabric of society. Next follows the prohibition of murder; the prohibition of adultery, as a violation of the marriage bond;

The prohibition of theft, and false evidence: and the catalogue of offences concludes with the prohibition of criminal desires. Among the immediate causes to restrain the commission of a crime, not only the cruelty of the act itself, but all the remote and possible consequences should be taken into the account. If a fire is begun, or the barriers, that keep out the waves, are broken down, the perpetrator brings upon his own head the blood of thousands, and all the guilt of that ruin by which they perish.

In addition to the general characters of injustice above described, we may annex the crime of being undutiful to parents, unkind to relatives, or ungrateful to benefactors, which are each of them a violation of natural, and in some respects of civil law. The repetition of these offences too aggravates their enormity:

because wicked habits are sometimes worse than wicked actions. Hence we may comprehend the natural justice of that rule, which the Persians followed, comparing the past life of an offender with his present transgression. And this ought to have some weight in cases where a crime does not originate from habit, but from a momentary occasion. But not so, where a course of former rectitude has been changed into an unvaried course of wickedness.

For in such cases, God himself has declared by the mouth of his prophet Ezekiel, that he has no regard to the former life. Even profane writers have the same clear views upon the subject; for Thucydides observes, that degeneracy from a righteous to a wicked course incurs double punishment: for offences are least pardonable in those, who know the difference between right and wrong. In this respect all praise and admiration are due to the wisdom of the primitive Christians, who, in estimating the magnitude of offences, weighed the preceding and the subsequent conduct of a transgressor against the action, for which he was to be punished, as may be seen from the council of Ancyra, and other councils. It heightens the enormity of an offence, where it is committed in violation of an express prohibition of the law. For, in the language of Tacitus, “the fear of prohibition may sometimes243 operate as a restraint, but where men once act in defiance of that, fear and shame have lost all their force.”

Part 31:

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

Part 32:

The Pythagoreans maintain that justice lies in proportioning the punishment to the offence: a rule which cannot be admitted to the full extent of requiring an aggressor to suffer nothing more than a bare requital of the injury he has occasioned. For this is at variance with the most perfect laws, which in cases of theft sometimes require fourfold, and sometimes fivefold restitution to be made.

The Athenian law, besides compelling a thief to pay double the value of what he had taken sentenced him to many days’ imprisonment. Among the Indians, as we are informed by Strabo, the person, who had maimed another, was condemned, in addition to the penalty of retaliation, to lose his hand.

Nor is it right, as Philo, in explaining the punishment of murder, justly observes, for the suffering of an innocent and guilty person to be exactly the same. And hence it is easy to see why certain crimes not carried into actual execution, and therefore less injurious than those, which are so, are punished only proportionably to the design.—In this manner false witnesses were treated by the Jewish law; and by the Roman law, those who walked ready armed to commit murder. Consequently a greater degree of punishment is due, where the criminal intention is completed. But as death is the severest punishment that244 can be inflicted, and one that can never be repeated; the sentence of all human law rests there: though by the custom of some countries death is accompanied with torture, in cases of extreme atrocity.

Part 33:

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

Part 34:

Punishment does not exceed the bounds of justice.

Yet in certain cases it may be mitigated in favour of a criminal, from motives of mercy, except where such lenity to the guilty is deemed cruelty to the innocent, whose safety is thereby endangered. For the escape of a criminal is often an encouragement to his own perseverance in iniquity, and to that of others, who are encouraged by the example. Necessity indeed requires the sharpest remedies for the suppression of crimes; especially, where the incentives of habit and a facility to commit them prevail.

Part 35:

The divine law given to the Hebrews punished the stealing of cattle from a pasture with more severity than breaking into a house, on account of the ease with which the former of those crimes might be committed. Exod. xxii. 1–9. Justin in speaking of the Scythians, describes them as “punishing theft with more severity than any other crime; for as they have no covered habitations to protect their flocks, and herds from depredations, what could be safe, if thieving were allowed?” Though the FAMILIARITY of certain crimes may prevent us from being surprised at their perpetration, it by no means diminishes their atrocity, or demands a mitigation of punishment.

But, as Saturninus says, “the giant-strides of crimes must be impeded with the strongest bands.” In trials for offences, clemency may be indulged, but in the passing of laws severity should be regarded: For the GENERAL nature of law requires that offences should be pursued with rigour: but in trials, in which individuals are the245 objects concerned, there may be circumstances to aggravate or diminish the offence: which leaves room for the discretionary exercise of rigour or lenity.

Part 36-37:

The inclination to mitigate penalties, where the urgent motives to enforce them no longer exist, is a point of compassion perfectly distinct from the abolition of punishment altogether.

Nor has any thing been omitted, that might tend to clear up this difficult and delicate question. But every point, we trust, has been examined in its proper place, either respecting the magnitude of crimes, as measured by the injury done, the habitual commission of such offences, or the influence of the motives, sufficient to encourage or restrain them. Indeed the character of the offender affords the most conclusive means for judging of his capacity to commit the crime; and that of the sufferer often contributes something towards enabling us to estimate the due proportion of the penalty.

The circumstances of the time, when—the place, where—or the facility, with which a crime is perpetrated, tend to aggravate, or lessen its enormity. The length of time intervening between a criminal design and its execution gives us some opportunity to examine how far the perpetrator was actuated by a malicious purpose. But the true complexion of a crime is to be discovered, partly from the nature of those appetites, to which it owes its birth; and partly, on the other hand, from the nature of the motives which ought to have restrained them. By this class of appetites the magnitude of a crime may be judged of; and the consequences are the motives which should operate to restrain them.

Part 38:

Wars are undertaken, as acts of punishment.

This motive, added to that of redress for injuries, is the source, from which the duties of nations, relating to war, take their rise. But it is not every injury, that can be construed into a just ground of war. For laws, whose vengeance is meant to protect the innocent, and to fall upon the guilty, do not regard every case, as a sufficient warrant for their exertion. So that there is much truth in the opinion of Sopater, who says that there are trivial and common offences, which it is better to pass over unnoticed, than to punish.

Part 39:

The maxim laid down by Cato, in his speech in defence of the Rhodians, that it is not right any one should be punished upon the bare suspicion of his having intended to commit aggression or injury, was well applied in that place; because no positive decree of the people of Rhodes could be alleged against them, nor was there any other proof beyond the CONJECTURE of their wavering in their policy. But this maxim is not universally true.

For where intention has proceeded to any outward and visible signs of insatiable ambition and injustice, it is deemed a proper object of jealousy, and even of punishment.

Upon this principle, the Romans, as may be seen from Livy’s account in the xlii. book and xxx. chapter of his history, thought themselves justified in declaring war against Perseus, King of Macedon, unless he gave satisfactory proof, that he had no hostile intentions against them, in the naval and military armaments, which he was preparing. And we are informed by the same historians, that the Rhodians urged it as a rule established by the laws and customs of all civilized states; that if any one wished the destruction of an enemy, he could not punish him with death, unless he had actually done something to deserve it.

But it is not every unjust design, though indicated by some outward act, which can authorize and direct hostilities. For if the actual commission of crimes and aggressions is, in some cases, proper to be overlooked, much more will it be a mark of deliberate caution to use the same forbearance, where nothing further than the pure design of aggression appears. A forbearance which Cicero justifies upon the possibility that the enemy may have repented of his design, before the execution of it. No conclusive inference can be drawn from the severity of Mosaic Law against all intended acts of impiety and murder.

For, in comparing human laws with the divine counsels, whose depths we cannot sound, we are liable to run into error; and the impulse of anger, where it is attended with no fatal consequence, is a case in which the infirmity of human nature calls for pardon. For altho’ the precepts of the decalogue are designed to lay a restraint upon unlawful desires as well as upon unlawful actions, yet in addition to the spiritual sense, that which is called the carnal, or external commandment applies to those dispositions that are manifested by some open act. This interpretation may be deduced from a passage in the gospel of St. Mark, c. x.247 19, where the prohibition to defraud is immediately preceded by the injunction not to steal. So that intended aggressions are not to be punished by force of arms, except in cases of atrocity, where the very design threatens consequences of the greatest danger. All punishment therefore must have in view either security against future aggressions, reparation for the injury done to national or private honour, or it must be used as an example of awful severity.