I. 1

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HEN we speak of the extension of punishment from one person to others, we speak either of those who are partakers in the delict, or of others. Those who are partakers in the delict are not punished so much for another's delict as for their own. Who these are, may be understood from what has been said above concerning damage wrongfully inflicted. For generally, a person comes to be a sharer in the delict, in the same way in which he comes to be a sharer in the damage done; yet it is not always true that when a person is bound for the damage, he is also liable to punishment; but only when there has been, besides, some notable malice; whereas to make a person bound for the damage, any fault whatever often suffices.

2 Therefore they who command a vicious act, they who give the consent which is requsite, they who assist, who receive the things, or in any other way participate in the crime itself; they who give their counsel towards it, who praise it, who assent to it; those who being bound by their special rights to forbid it, do not forbid it; or being bound by similar rights to give aid to the person who suffers wrong, do not do so; those who do not dissuade when they ought to dissuade; who keep silence with regard to a fact which they were bound by some right to make known; all these may be punished, if there be in them such malice as suffices for penal desert, according to what has already been said.

II. 1 The thing will be made clearer by example. A Civil Community, like any other Community, is not bound by the act of an individual member thereof, without some act of its own, or some omission. Augustine says well, There is a difference between the fault that, in a people, each person has of his own; and a fault common to all, which is committed with one mind and one will. And accordingly, in Treaties the formula is, [Liv. 1. 24,] If he violate this by public act. The Locrians in Livy plead to the Roman Senate that their defection was by no means a public act. So again Zeno, pleading for the Magnesians, begged with tears that they would not ascribe to the whole city the insanity of one man: that each one's madness must be at his own risk. And the Rhodians, before the Senate, separate the public cause from that of private persons, saying that there is no city which has not often wicked citizens, and always a senseless mob. So the father is not bound by the delict of the son, nor the master by that of the servant, except there be some cause of blame in themselves.

2 But of the ways in which rulers come to share in the crime of others, there are two which are most common, and require diligent consideration: their allowing and their receiving.

With regard to allowing, it is to be held that he who knows of the commission of the offense, who can, and is bound to prevent it, and who does not, does himself offend. So Cicero against Piso; Brutus, in a letter to Cicero; Agapetus to Justinian; Arnobius; Salvian; Augustine.

3 So he who allows his slave to be prostituted when he could prevent her, is held by the Roman Law to have prostituted her. If a slave commit homicide with the knowledge of his master, the master is equally liable, for he is considered as guilty of the homicide. And by the Fabian law, the master is punished if his servant, with his knowledge, has drawn away and secreted another servant.

4 But as we have said, there is required, to produce this liability, not only knowledge, but the power of prevention. And this is what the Laws say; that knowing, when it is directed to be punished, is taken for allowing; so that he who could have prevented, is held bound if he did not do so; and that the knowing here spoken of is considered as combined with willing; and that knowledge is taken along with purpose; and therefore, that the master is not bound if the slave has asserted and appealed to the laws for his liberty; or, if he have disregarded his master; for he is blameless who knows, but cannot prevent. 5 When Hesiod says,

Often the whole of the city is punished for one man's injustice, Proclus says well, As having had it in their power to prevent him, and not having done so. So Horace of Agamemnon,

Though 'tis the kings that are mad, the Achaians suffer the evil.

For they might have compelled him to restore the priest his daughter. And so after the Greek fleet was burnt,

All for the fault of one, for the madness of Ajax Oïleus.

As Ovid says on the same subject,

One constrained the maid, but the penalty spread to the many: because the others did not prevent the sacred virgin from suffering violence. So Livy about the Laurentian ambassadors, repelled by Tatius. So Salvian speaks of kings. And Thucydides says, He who could prevent it does it. So in Livy, the Veientes and Rutulians excuse themselves to the Romans, in that their subjects had assisted the enemies of the Romans, they having no knowledge of the fact. And on the other hand, the excuse of Teuta, the queen of the Illyrians, is not accepted, when she said that piracy was not practised by her, but by her subjects; for she did not prevent it. And in ancient times the Scyrians were condemned by the Amphictyons because they allowed some of their people to practise piracy.

6 It is easy to know, so far as presumption goes, acts which are conspicuous and which are frequent. What is done by many, can be ignored by none, as Dio Prusæensis says. Polybius heavily blames the Etolians, because, when they were desirous of not being deemed the enemies of Philip, they allowed their people to commit hostile acts, and gave distinguished honours to those who had been prominent in such proceedings.

III. 1 Let us come to the other question, of receiving, as a subject of punishment. Punishment, as we have said, according to Natural Law, may be inflicted by any one who is not open to a like charge; though no doubt it is in conformity with civil institutions, that the delicts of individuals, which regard their own community, should be left to that community, and to its rulers, to be punished or passed over as they choose.

2 But there is not the same full power left to them in delicts which in any way pertain to human society in general: for these, other states and their rulers may prosecute, as in particular states there is a prosecutor of certain offenses which any one may put in motion: and much less have they such a power in offenses by which another state or its ruler are especially assailed; and in which, consequently, the state or the ruler have, on account of their dignity or security, a right of exacting punishment, as we have said. This right is not to be impeded by the state in which the offender lives, or its ruler.

IV. 1 But since states are not accustomed to permit another state to enter their territory armed for the sake of exacting punishment, nor is that expedient; it follows that the city, where he abides who is found to have committed the offense, ought to do one of two things: either itself, being called upon, it should punish the guilty man, or it should leave him to be dealt with by the party who makes the demand for this is what is meant by giving him up, so often spoken of in history.

2 Thus the Israelites demand of the Benjamites, that they give up

those who have committed the crimes; Judges xx. The Philistines require from the Hebrews that they give up Samson as an evil-doer; Judges xv. So the Lacedæmonians made war upon the Messenians because they did not give up a man who had killed Lacedæmonians: and, at another time, because those were not given up who had done violence to virgins sent to perform a sacred office. So Cato advised that Cesar should be given up to the Germans, for wrongfully making war upon them. So the Gauls demanded that the Fabii should be given up to them, because they had fought against them. The Romans required those who had plundered their land to be given up to them by the Hernici; and Amilcar, by the Carthaginians, not the celebrated general, but another, who stimulated the Gauls: they afterwards demanded Annibal; and Jugurtha from Bocchus, that, as Sallust puts it, you may relieve us from the painful necessity of punishing at the same time, you who are in error, and him who is most criminal. The Romans themselves gave up those who had done violence to the ambassadors of the Carthaginians; and again, of the Apolloniates. The Achæans required the Lacedæmonians to give up those who had attacked the town of Las, adding, that if they did not do so, the league was violated. So the Athenians proclaimed by a herald, that if any one practised secretly against Philip, and then fled to Athens, he would be liable to be given up. The Beotians required of the Hippotians that those who had slain Phocus should be given up.

3 All which passages, however, are so to be understood that the people or the king are not strictly bound to give up the person, but, as we have said, to punish him. For thus we read that the Eleans made war on the Lacedæmonians, because they had not punished those who had done injury to the Eleans; that is, they neither punished them nor gave them up. It is a disjunctive obligation.

4 Sometimes the option is given to those who demand the guilty, that the satisfaction may be more complete. The Cærians, in Livy, signify to the Romans that the Tarquinians passing through their land with a small force, though they had asked for nothing but a passage, had drawn along with them some of the country people to join them in the marauding practices of which they were accused: that if it were wished that they should be given up, they were ready to give them up; if it were wished that they should be punished, they were ready to punish them.

5 In the second league of the Carthaginians and Romans, which is extant in Polybius, there is this passage (if rightly read): If not, let each pursue his own right by private proceedings: if this does not succeed, let it be considered a public delict. Eschines, in his answer to the accusation of Demosthenes respecting his embassy to Philip, relates that when they discoursed with Philip on the peace of Greece, he said, among other things, that it was just that the punishment of the crimes which were committed should fall, not on the cities, but on

the offenders: and that the cities who should bring to judgment the persons accused, ought not to be harmed. (Quintilian says, Those are next door to deserters who harbour deserters*.)

6 Among the evils which arise from the discords of states, Dio Chrysostom puts this: It is possible that those who have injured one city, to fly to another.

7 There occurs the question, of persons given up, if they are given up by one state, and not accepted by the other, do they remain citizens?

P. M. Scævola held that they did not since when the people had given up a person, it was as if they had expelled him from the city, as if they had interdicted him from fire and water. Brutus, and after him Cicero, defend the opposite opinion. And this is the sounder opinion; not, however, properly for the reason which Cicero gives, that a surrender, like a donation, cannot be understood without acceptance. For the act of donation is not complete without the consent of two: but the giving up or surrender of which we have spoken is nothing more than leaving a citizen of ours to the power of another people, so that they may determine about him what they will. But this permission does not give or take away any right: it may take away an impediment to the execution of punishment. Therefore if the other people do not use the right which is conceded to it, the person so surrendered will be in a condition to be punished by his own nation, (as happened in the case of Clodius, surrendered to the Corsicans and not accepted by them;) or he may not be punished, as there are many delicts in which the one or the other may take place. And the rights of a citizen, like many other rights and possessions, are not lost by a mere fact, but by some decree or sentence; except there be some law which directs the fact to be considered as a judicial act, which cannot be said in this case. And in the same way, if goods are surrendered but not accepted, they remain whose they were. But if the surrender of a person is accepted, and afterwards he who had been surrendered happens to return, he is no longer a citizen, except by some new concession of citizenship to him: and in this sense the opinion which Modestinus gave respecting a person surrendered, is true.

8 What we have said of surrendering or punishing criminals, applies not only to those who have always been the subjects of him under whose rule they are now found; but also to those, who, after committing a crime, have fled to any place.

V. 1 Nor is this doctrine impeached by the rights of suppliants, and the cases of asylum, which are so much spoken of. These arrangements are for the advantage of those who are persecuted without deserving to be so; not of those who have committed what is injurious to human society or to other men. So Gylippus says of this right of suppliants. [See.] Menander very properly distinguishes This passage is not quite to the purpose. W.