Rights In Civil Society
Appendix 11. (2514).
Everyone knows how severely the Almighty forbade the shedding of blood at the beginning of the world (Gen 9: 5-6). Hugo Grotius comments on these verses with his usual common sense: `In those first days, either because of the scarcity of human beings or because there was less need of an example for THE FEW MURDERERS, God suppressed with an edict something that was naturally lawful. He did indeed want people to avoid contact and dealings with murderers, but he did not want their life to be taken' (De iure B. et P., bk. 1, c. 2, §5). This command of God to spare the life of the murderer, but avoid contact with him, suggests two considerations: 1. The nature of the first penal laws did not tend properly speaking to suppress criminal activity, but to prevent its birth or, granted its birth in some individual, to forestall any increase in others through bad example or through dealings with the delinquent. The supposition here is that the social body is still unharmed and that criminal activity has not spread. 2. The constancy of divine legislation. The separation of the delinquent from society was the punishment perpetually adopted both by the ancient and the new Church, but more by the latter which is altogether intent on saving the delinquent, and preserving society from scandal and the contagion of imitation. It is our hope that civil society and criminal legislation will one day reach its ideal. When that day comes, the greatest, most effective, most human punishment will be EXCOMMUNICATION. Legal positivists will laugh at this, but that is only because their vision sees no further than the present moment. Grotius notes that this extremely ancient punishment of excommunication and exile was established by Plato in place of the death penalty, although our Greek philosopher did not exclude the death penalty for certain crimes such as patricide, and for certain persons such as bond-servants (De Leg., 9). Grotius offers an example from Euripedes (Orest, v. 511 ss.), where he praises the first legislators because they inflicted exile, not death, on murderers:
| How well our FATHERS IN THEIR
FORESIGHT compelled the murderer to flee |
Lactantius, speaking of exile imposed on offenders from the beginning, says: `It still seemed wrong to execute even evil men' (De Institut. div., bk. 2, c. 20: 23). Pliny records the first death penalty, carried out, it would seem, by the Council of the Areopagus (Hist. nat., 7: 56).