Chapter 20

Punishments

June 25, 2022

Definition and origin of punishment—In what manner punishment relates to strict justice—The right of punishing allowed by the law of nature, to none, except to those, who are innocent of the crimes and misdemeanours to be punished—Difference of motive between human and divine punishment—In what sense revenge is naturally unlawful—The advantages of punishment, threefold—The law of nature allows any one to inflict punishment upon an offender, yet with a distinction—The regard which the law of nations pays to the benefit of the injured party, in the infliction of punishment—General utility of punishments—What is determined by the law of the Gospel, in this respect—Answer to the objections founded upon the mercy of God, as displayed in the Gospel—Capital punishments objected to as cutting off all possibility of repentance—Not safe for private Christians to inflict punishments, even when allowed to do so, by the law of nations—Prosecutions, for certain offences, to be carried on in the name of the public and not of individuals—Internal acts not punishable by man—Open acts, when inevitable through human infirmity not punishable—Actions, neither directly nor indirectly injurious to society, not punishable by human laws—The reasons of that exemption—The opinion, that pardon can never be granted, refuted—Pardon shewn to be allowable before the establishment of penal law—But not in all cases—Allowable also subsequently to the establishment of penalties—Internal and external reasons—Opinion, that there can be no just reason for dispensing with laws, except where such dispensation can be implied as authorised by the law, examined and refuted—Punishment estimated by the desert of the offender—Different motives compared—Motives which ought to restrain men from sin—Scale of offences according to the precepts of the Decalogue—Capacity of the offender—Punishment mitigated from motives of charity, except where there are stronger motives of an opposite kind—Facility or familiarity of crimes aggravates their nature—Clemency, proper exercise of—Views of the Jews and Romans in inflicting punishment—War considered as a punishment—Whether hostilities can justly be commenced for intended aggressions—Whether Kings and Nations are justified in making war to punish offences against the law of nature, not immediately affecting themselves or their subjects—The opinion, that jurisdiction is naturally necessary to authorise punishment, refuted—Distinction between the law of nature, and civil customs, and the divine voluntary law—The question, whether war can be undertaken to punish acts of impiety—considered—The being of God, whence known—Refusal to embrace the Christian religion not a sufficient cause of war—Cruel treatment of Christians, justifiable cause of war—Open defiance of religion punishable.

Part 1: What is the origin and nature of punishment?

Punishment taken in its most general meaning signifies the pain of suffering, which is inflicted for evil actions.

For although labour may some times be imposed instead of punishment; still it is considered in that case, as a hardship and a grievous burden, and may therefore properly be classed with sufferings. But the inconveniences, which men are some times exposed to, by being excluded from the intercourse of society and the offices of life, owing to infectious disorders, or other similar causes, which was the case with the Jews on account of many legal impurities, these temporary privations are not to be strictly taken for punishments: though from their resemblance to each other, they are often, by an abuse of terms, confounded.

But among the dictates laid down by nature, as lawful and just, and which the ancient Philosophers call the law of Rhadamanthus, the following maxim may be placed, THAT IT IS RIGHT FOR EVERY ONE TO SUFFER EVIL PROPORTIONED TO THAT WHICH HE HAS DONE.

Which gave occasion to Plutarch, in his book on exile, to say that “justice is an attribute of God, avenging all transgressions of the divine law; and we apply it as the rule and measure of our dealings with each other. For though separated by the arbitrary or geographical bounds of territory, the eye of nature looks upon all, as fellow subjects of one great empire.” Hierocles gives a fine character of justice, calling it the healing remedy of all mischief. Lactantius in speaking of the divine wrath calls it “no inconsiderable mistake in those, who degrade human or divine punishment with the name of cruelty or rigour, imagining that some degree of blame must always attach to the punishment of the guilty.” What has been said of the inseparable connection of a penalty with every offense is similar to the remark of Augustin, “that to make a punishment JUST, it must be inflicted for some crime.” He applies the expression to explain222 the divine justice, where through human ignorance, the offence is often undiscoverable though the judgment may be seen.

Part 2:

There are diversities of opinion whether punishment comes under the rank of ATTRIBUTIVE or that of STRICT justice.

Some refer it to justice of the attributive kind, because offences are punished more or less, in proportion to their consequences, and because the punishment is inflicted by the whole community, as it were, upon an individual.

It is undoubtedly one of the first principles of justice to establish an equality between the penalty and the offence. For it is the business of reason, says Horace, in one of his Satires, to apply a rule and measure, by which the penalty may be framed upon a scale with the offence, and in another place, he observes, that it would be contrary to all reason to punish with the rack a slave, who deserved nothing more than the whip. I. Sat. iii. v. 77, and 119. The divine law, as may be seen from the xxv. Chapter of Deuteronomy, rests upon the same principle.

There is one sense, in which all punishment may be said to be a matter of strict justice. Thus, when we say that punishment is due to any one, we mean nothing more than that it is right he should be punished. Nor can any one inflict this punishment, but the person, who has a right to do so. Now in the eye of the law, every penalty is considered, as a debt arising out of a crime, and which the offender is bound to pay to the aggrieved party.

And in this there is something approaching to the nature of contracts.

As a seller, though no EXPRESS stipulation be made, is understood to have bound himself by all the USUAL, and NECESSARY conditions of a sale, so, punishment being a natural consequence of crime, every heinous offender appears to have VOLUNTARILY incurred the penalties of law. In this sense some of the Emperors pronounced sentence upon malefactors in the following manner, “you have brought this punishment upon Yourselves.” Indeed every wicked action done by design was considered as a voluntary contract to submit to punishment. For, as Michael the Ephesian observes on the fifth book of Aristotle’s Nicomachean Ethics, the ancients gave the name of contract, not only to the voluntary agreements which men made with each other, but to the obligations arising from the sentence of the law.

Part 3:

But to whom the right of punishing properly belongs, is a matter not determined by the law of NATURE. For though reason may point out the necessity of punishing the guilty, it does not specify the PERSON, to whom the execution of it is to be committed.

Natural reason indeed does so far point out the person, that it is deemed most SUITABLE for a SUPERIOR ONLY to be invested with the power of inflicting punishment. Yet this demonstration does not amount to an ABSOLUTE NECESSITY, unless the word superior be taken in a sense implying, that the commission of a crime makes the offender inferior to every one of his own species, by his having degraded himself from the rank of men to that of the brutes, which are in subjection to man; a doctrine, which some Theologists have maintained. Philosophers too agreed in this. For Democritus supposed that power naturally belonged to superior merit, and Aristotle was of opinion that both in the productions of nature and art the inferior were provided for the use of the superior parts.

From this opinion there arises a necessary consequence, that in a case where there are equal degrees of guilt in two parties, the right of punishment belongs to neither.

In conformity to which, our Saviour, in the case of the woman taken in adultery, pronounced that whoever of the accusers was without sin, meaning sins of equal enormity, should cast the first stone. John viii. 7. He said so for this reason, because in that age the manners of the Jews were so corrupt, that, under a great parade of sanctity, the most enormous vices, and the most wicked dispositions were concealed. A character of the times which the Apostle has painted in the most glowing colours, and which he closes with a reproof similar to what his divine master had given, “therefore thou art inexcusable, O man, whosoever thou art that judgest: for wherein thou judgest another thou condemnest thyself; for thou that judgest doest the same things.” Rom. ii. 1. Applicable to which there is a remark of Seneca’s, that “no sentence, which is passed by a guilty person can have any weight.” And in another place, the same writer observes, that “if we look into ourselves and consider whether we have been guilty of the offences we are going to condemn, we shall be more moderate in our judgments.”

Part 4:

Another part of our inquiry respects the end proposed by punishment. For by what has hitherto been said, it was only meant to shew that in punishing the guilty no injury is done to them. Still the absolute necessity of punishment does not follow from thence. For the pardon of the guilty on many occasions has been considered as the most beauteous feature in the divine and human character.

Plato is celebrated for his saying that “justice does not inflict punishment for the evils that are done and cannot be retrieved; but to prevent the same from being done for the time to come.” From Thucydides we find that Diodorus in addressing the Athenians on the conduct of the Mitylenaeans, advises them “to forbear punishing their avowed injustice, unless it was probable that the punishment would be attended with some good effect.”

These maxims may be true with regard to human punishments: for one man being so nearly allied to another by blood, no degree of suffering should be inflicted, but for some consequent good. But the case is different with respect to God, to whom Plato injudiciously applies the above sentiments. For though the divine counsels will undoubtedly have the good of men in view, as the end of all punishment, yet the bare reformation of the offender cannot be the sole object. Since the divine justice, though tempered with mercy must adhere to the truth of the revealed word, which threatens the wicked with punishment or destruction.

The honour therefore of God, as well as the example held up to men, will be a consequence resulting from his punishment of the wicked.

Part 5:

A dramatic writer has said that “the pain of an enemy is a healing remedy to a wounded spirit,” in which he agrees with Cicero and Plutarch: in the opinion of the former “pain is mitigated by the punishment of an adversary,” and in that of the latter “satisfaction is a sweet medicine to a troubled mind.”

But a disposition like this, when stripped of all disguise and false colouring, will be found by no means suitable to the reasonable soul of man, whose office it is to regulate and controul the affections. Nor will that disposition receive any sanction from the law of nature, who in all her dictates, inclines to unite men in society by good will, rather than to separate them by cherishing animosity. For it is laid down by reason, as a225 leading axiom in her code of laws, that no man shall do any thing which may hurt another, unless it be for the purpose of some evident and essential good. But the pain of an enemy considered solely of such, is no benefit to us, but a false and imaginary one, like that derived from superfluous riches or things of the same kind.53

In this acceptation revenge is condemned both by Christian teachers and heathen philosophers. In this respect, the language of Seneca approaches very near to the perfection of Christian morals. He calls revenge, in its usual and proper acceptation, a term of inhumanity, differing from injury only in degree. For retaliation of pain can be considered as nothing better than excusable sin. Juvenal, after describing the different tempers, over which revenge exercises the most powerful dominion, and shewing the amiable characters over which it has no influence, concludes it to be the pleasure of a little and infirm mind.

From the preceding arguments it is plain that punishment cannot justly be inflicted from a spirit of revenge. We proceed therefore to consider the advantages attending its just infliction.

Part 6:

What are the distinctions in the motives of punishment?

Plato used these in his Gorgias, and by Taurus the philosopher in a passage quoted by Gellius in the fourteenth chapter of his fifth book.

These distinctions seem to result naturally from the end of all punishment. Plato indeed considers the amendment of the offender, and the example given to others, as the two principal motives:

but Taurus has added a third, which he calls satisfaction, and which is defined by Clemens Alexandrinus, to be repayment of evil, contributing to the benefit226 of both the aggrieved and avenging party. Aristotle passing over example as a motive, confines the object of punishment to the amendment or correction of the offender.

But Plutarch has not made the same omission: for he has said, that “where immediate punishment follows the execution of a heinous crime, it both operates to deter others from committing the same crime, and administers some degree of consolation to the injured and suffering person.”

This is what Aristotle calls commutative justice.

But these matters require a more minute inquiry. We may observe therefore that there is nothing contrary either to human or divine law, in punishments, which have the good of the offender, or that of the injured party, or of any persons whatsoever in view.

The three proper ends are obtained by that kind of punishment:

  1. Correction
  2. Chastisement
  3. Admonition

Paulus the Lawyer calls it correction.

Plato calls it a lesson of instruction.

Plutarch calls it a medicine of the soul, reforming and healing the sufferer, while it operates as a painful remedy.

For as all deliberate acts, by frequent repetition, produce a propensity, which ripens into habit, the best method of reforming vices in their earliest stage is to deprive them of their sweet savour by an infusion of subsequent pain.

Platonists believe, as repeated by Apuleius, that “impunity and the delay of reproof are more severe and pernicious to an offender than any punishment whatsoever,” and, in the words of Tacitus, “violent disorders must be encountered with remedies proportionably strong.”

Part 7:

The power of inflicting the punishment, subservient to this end, is allowed by the law of nature to any one of competent judgment, and not implicated in similar or equal offences.

This is evident as far as verbal reproof goes, from the maxim of Plautus, that “to bestow merited reproof upon a friend is useful, upon certain occasions, though by no means a grateful office.” But in all kinds of constraint and compulsion, the difference made between the persons, who are allowed, and who are not allowed to exercise it is no appointment of natural law, but one of the positive institutions of the civil law. For no such natural distinction could be made, any farther than that reason would intrust parents with the227 peculiar use of such an authority, in consideration of their affection.

But laws, in order to avoid animosities, have, with respect to the authority of punishing, passed over the common kindred subsisting among mankind, and confined it to the nearest degrees of relation: as may be seen in many records, and particularly in the code of Justinian, under the title of the POWER OF RELATIVES TO CORRECT IN ORDER TO REFORM OFFENDERS.

Cyrus, in the v. book and viii. chapter of Xenophon’s history of the Expedition, addresses the soldiers to the following purport, “If I punish any one for his good, I am willing to submit to justice; but would it not be equally reasonable that parents and masters should submit to justice, for having corrected children, or the Surgeon be responsible for having used the incision-knife, where the patient’s case required it?”

But this kind of corrective punishment does not extend to death, which cannot be considered, as a benefit in itself, except INDIRECTLY and BY WAY OF REDUCTION, as it is called by Logicians, who, in order to confirm negatives, reduce them to things of an opposite kind.

Thus, in Mark Chapter 14 Verse 21, Jesus says that it were better for some, they had never been born, so, for incurable dispositions, it is better, that is would be a less evil, to die than to live; since it is certain that by living they will grow worse. Plutarch calls such men a pest to others, but the greatest pest to themselves.

Galen says that capital punishments are inflicted to prevent men from doing harm by a longer course of iniquity, and to deter others by the fear of punishment, adding that it is better men should die, when they have souls so infected with evil, as to be incurable.

There are some, who think that these are the persons meant by the Apostle John, who describes them as sinning a sin unto death. But as their arguments are not satisfactory, charity requires that no one should be deemed incorrigible, except upon the clearest grounds. So that punishment with such an end in view can only be inflicted for important causes.