17. CHAP. XV. Of Exile or Banishment.
CHAP. XV. Of Exile or Banishment.
F orsomuch as Abiathar was banished to the territory of his Father, and Semei commanded to keep himself at Jerusalem, the which be kinds of banishments, it shall not be amiss to speak somewhat of Exiles or Banishments. First we will inquire out the definition of Exile. Secondly, we will search which be the kinds thereof. And thirdly shall be disputed whether this kind of punishment ought to be used in Commonwealths; namely, for expelling of an hurtful man out of their dominions, when they may punish him. And to keep a right Method, we will begin at the Etymology of the word. Of the Hebrews it is called Makalash. For the verb
Kalash is to gather or bind together. Therefore did they call Cities of refuge by this name, because they gathered themselves unto them, and thither were the fugitives drawn together. And it may also be called Magnahash, of flying or scaping away. The Grecians also called exile φυγήν φυγαδείαν, a fugiendo, of flying away. The Latins if we may believe Nonius Marcellus, called it Exilium, because they that so fly away be without country or Land, namely of their own. And men were said to go from one soil to another,
when they fled from any hurt or punishment which remained for them at home. But they which study to comfort exiled men, do call their exiles peregrinations, when as nevertheless there is perceived no small difference between these things. For peregrination is taken in hand willingly and for sundry causes, not for the avoiding of punishment which should be laid upon them at home. But so men speak, that they by a more mild word may extenuate that punishment: exhorting their friends by that manner of speech, to take that upon them as voluntary which they suffer against their will. And undoubtedly, that flying away comprehendeth in it some voluntariness, as are the mingled actions, whereof there is mention in the Ethics, for they which so go from one country to another: would shun greater punishments, which they should incur by tarrying in their own country. Also unto exiles they have joined those which vulgarly are called Banna. Between them are perceived some differences, although not great. But hereof we read in the digests, in the Title De interdictis & relegatis.
2. These things being set down after this manner, it will not be hard to enter into the definition. Wherefore we will say, that exile is a flying away, wherein the guilty for this cause do go from one country to another, that they may avoid the punishments of laws or else suffer them. Wherefore it is a flying, but not of every sort, because otherwhile men do fly either poverty, or scarcity of grain, or the distemperature of the heaven, or else sickness, and the plague: but they return when they will, and therefore it was said:
That they may avoid punishments or else suffer them. And that latter [particle] which is added, belongeth unto them which be carried into the Island or unto the Mines. And whereupon these things began it is easy to be showed. The Roman commonweal either is considered, [as it was] when the liberty thereof stood, or else when afterward it began to be ruled and
governed by one king. So in like manner Exiles were of two sorts: to wit, one in the time of liberty, and another under princes. When it was a free
City, banishment was enough (if they were Citizens,) when the question touched their life. But afterward the Emperors commanded that Malefactors should be carried away unto the Mines or into the Islands. Wherefore
Cicero in his Oration for Caecinna said, that Exile was the haven of punishments, not an execution of death. And he added that the city of Rome by their laws punished no offense by banishment. Nevertheless, if any would avoid prisons, bonds, and other punishments, those fled into exile as unto an Altar. Neither must it be read unto Arms, as corruptedly some copies have. For if that the parties which were guilty, would in abiding at home hazard the extremity of the law, the city should not be so soon taken from them as their life. But when they would none of that, the City was not said to be taken from them, but contrariwise they were said to lean it. And in the fifth Philippic Oration he saith: They which were condemned for capital crimes had no sooner chosen a City, but they were admitted into it, whither they came to dwell. Furthermore out of a certain Oration of Julius
Caesar, (which is described by Salust in the conspiracy of Catiline) it is gathered, that the ancient Romans did imitate the Greeks, so that they punished the Citizens with stripes, and put the condemned to death. After that, were made the laws of Porcia, and also certain other laws, which would not that a Citizen should be punished with death, but granted him to go into Exile. Cicero in his Oration for his house, said, that Exile was not by express name laid upon them which were condemned, but they were forbidden water and fire, to wit, that by a certain space of miles they might not enjoy the use of human things. And certainly it behooved Cicero himself to be absent five hundredth miles from the City. So then the
Citizens of Rome were not by express name sent into Exile. But as touching the thing itself, there seemed to be but small difference. In deed they were not laid hold upon, but they were constrained to depart, except they would live of the air. Wherefore so often as thou shalt read in the histories, (while the Commonwealth stood) the name of Exile, we must after this manner interpret the same.
3. Among the Grecians also there was a kind of Exile which they called ὀστρακισμόν [to wit of ten or 15 years] which was not laid upon men because of crimes, neither was it counted among punishments, neither did it bring any infamy unto them that were exiled, but it did rather moderate envy. The name is derived of ὄστρακον, by which word is signified a shell.
For there were certain shells, wherein was written the name of him that was to be banished. We might call the same a banishment by lot. Nor did they only live thus in exile, which excelled others in riches, favor, and power, but also they which excelled in eloquence and wisdom. Wherefore Damon the Schoolmaster of Pericles, was cast forth in this respect, because he was wiser than the rest. Aristides also, when at the incitation of Themistocles, this kind of banishment should have been decreed unto him, was present in the assembly. By whom sat as it happened, a certain man of the Country, who having the right of voices, and could not write, prayed Aristides, whom he knew not, that in the shell which he had, he would write the name of Aristides. To whom Aristides said: Doest thou know that man? He denied that he knew him. For what cause then (saith he) wilt thou cast him out?
The country man said: because they oftentimes call him just: but we Athenians cannot abide so great justice. The manner therefore was in the government of common people, to use very great endeavor, that none in the City should excel. Yea and Aristotle in the 5th Book of his Politics, De
conservando statu Democratico, maketh mention hereof, counseling that if any man in a City should excel overmuch, he should be removed from thence, because such men for the most part would bear rule over others.
There is moreover another kind of Exile which is called voluntary: and it is not of one form only. One is called φυγή ἐπί φόνῳ that is, for the cause of slaughter yet not of voluntary, but when a man is slain of one unwittingly and unwillingly. When this happened, they for purging sake removed their habitation, for men-killers have always been counted impure. Wherefore in the Pandects in the Title De poenis, in the law Aut facta, in the Paragraph
Eventus, a Lawyer saith, that such a kind of Homicide was accustomed to be purged by banishment. And he added thereto the verses of Homer wherein Patroclus saith, that he when he was a child, unwittingly slue his companion, and that his father brought him unto Peleus to be purged, and so the purging being performed, a companion was given unto him. And in Herodotus the first Book, Adrastus is recited, who to be purged came unto
Croesus. And Eustacius an interpreter of Homer teacheth that those purging's were used to be ministered with blood. So that to go from one country to another for purging sake, is reckoned among voluntary exiles.
Howbeit Orestes who willingly and wittingly killed his mother, came for purging sake to the less Tartaria. Yea and Livy in his first Book writeth that Horace when he was returned a vanquisher and had slain Horatia his sister, was absolved of the slaughter, but was commanded to depart into another
Country, that he might make satisfaction for the murder. And in the holy scriptures, he that had committed a slaughter unwittingly and unwillingly, retired himself unto a City of refuge. But Plato in his 9th Book of Laws ordained that they which willingly had slain a man should be banished forever, and such punishment he called ἀειφυγίαν: but they which
unwittingly and unwillingly had committed slaughter, should be banished for the space of one year.
4. Also there was another kind of voluntary exile, as when a man was sued to condemnation, and before that the Action was commenced, it was lawful for the party accused, to fly, because he would not abide judgment, as he that despaired to be quit. After that sort fled Verres, as testifieth
Asconius Poedianus. So likewise fled Cicero himself when he saw that he should be inferior to Clodius his accuser. And in the Oration for Cluentius it is showed, that one Fabritius, when he was risen from the bench, went his way. Livy also writeth in his second Decade, the 6th Book, that one Fulvius, before the day came for the choosing of officers, went his ways unto the Tarquinii. And in the 3rd Book Ab urbe condita, he writeth that the fellow officers of Claudius Appius went to dwell in another Country. Wherefore it was lawful for them which would, when suit of law was or should be commenced against them, to depart into exile. The Romans as touching this matter did imitate the Greeks. For Demosthenes, as it is in his Oration against Aristocrates teacheth, that this was lawful. Yet canst thou not judge, but that it might be, that they could let it. Some such thing as this, David in the holy histories seems to have done, when he fled not only into desert places, but also unto Achish King of the Philistines. Also Absalom when he had slain his brother, fled into Gessur. Likewise Jeroboam, when he saw that he incurred the crime of Treason, departed away. Howbeit in these things there was somewhat otherwise than was in the institution of the Roman laws. For the Israelites being once spoken of fled only, because they stood in the fear of themselves, when as yet they were not summoned to appear: but the others, namely the Greeks and Romans, had it granted them by laws that they might depart away when the suit was commenced.
5. There was yet another kind of voluntary exile: as when they had stood to the trial of law, and abidden judgment, yet would not pay the penalty awarded, whether it were money or some other thing else, they might fly away. But some demand whether it were more grievous to prevent judgment by flying away, or else to fly after judgment was now given. And the first in deed is thought of many to have been a less matter, because they should seem to depart away of their own accord, when as others were in a manner cast forth. Again, because the former which expected not judgment, did by flying into another Country, after a sort retain their dignity and degree. And this is gathered by the Oration of Cicero for his house. Also it is to be noted that when sentence was pronounced against any man of things touching life and death, so that he was let from [the use] of fire and water, that was done otherwhile for a time, and otherwhile forever. And sometime such banished men were forbidden to have access to certain places: and an otherwhile was appointed them a certain space, how far they should be distant from the City. And for the most part there was no certain place of banishment limited, but it was left free unto the exiled men, that they might be wheresoever they would, so they kept the limits of distance from the City or from Italy. Hereupon (as we noted before out of Livie) Fulvius went to the Tarquinii, and Milo, to Massilia. In this state the thing was, when the Roman liberty stood.
Under the Emperors the law was made more strait, as it is in the Title De Interdictis & relegatis, in the law Exilium. Marcellus maketh three sorts of Exile. The first, if one or two places be forbidden, as if a banished man should utterly refrain from Mutina or Bononia. The second he calleth Latam fugam, namely when as all places besides one were forbidden. To this kind of exile belonged the banishment of Abiathar and Semei. The third kind he
nameth Deportatio. Exiled men of the first kind were called Interdicti, that is, prohibited, but the others Relegati, that is, sent away. Plutarch in his
Book of Exile, maketh mention of the first kind, while he comforteth a friend, because he is excluded but from one City alone. And this kind of Exile is called ἐξορία, whereas Relegatio is called περιόρια. Therefore
Dionysius in a certain Epistle of his to John the Apostle, reproved some, which thought they could περιορίζειν τόν ἥλιον τοῦ εὐαγγελίου, that is,
Banish the sun of the Gospel. Under which saying he called John the Evangelist the sun of the Gospel.
The Exile which they called Deportatio, was a certain grievous punishment. For the guilty were delivered to public servants, and being put into a ship were sent away far off unto desert places. Wherefore Terence in the Comedy Phormio saith, that that wicked fellow should by common consent be banished into desert lands. They that were thus banished or carried away, were cast from the City, neither could they make a Testament, or obtain anything for themselves. Otherwhile men were banished unto the Mynes, that is, to do a public work. There was also another Exile, when a man was commanded to keep his house, to whom at that time the house was instead of a prison. Briefly; what time as the liberty fell, banishments were imposed by the sentences of Judges. Therefore Jerome in his 2nd Apology against Ruffinus, writeth that in his days were no banishments but such as were ordained by Judges. Furthermore there was some kind of banishment dishonest, but another only miserable. Whereupon Cicero in the Oration for his house: A dishonest banishment (saith he) it is, if it shall be the punishment for sin: but if it happened through condemnation, it was only dishonest in the opinion of men, but not in very deed: because men are sometime justly, and otherwhile unjustly condemned. Then he added that
Exile is a name not of dishonesty but of calamity. And to omit nothing, there be found other two, not properly but Metaphorically called Exiles or banishments. One, which the ancient Fathers in their writings oftentimes bewail, namely the state of this our life, wherein we are expelled from the kingdom of heaven or perfect regeneration. But the other is praise worthy, whereby we are banished from our own selves, the flesh and the world.
Howbeit if it be asked unto what kind of punishment their flight belongeth which leave their native Country, least they should contaminate themselves with superstition and idolatry: We answer that it is voluntary, for they fly from those mischiefs which at home would hang over their heads by Tyrants. For if they should tarry at their own house, they must needs enter either into the one or the other: since either it should behoove them to go to the Mass, or else to suffer grievous torments.
6. The third point of the question propounded, is whether at this day it be lawful for Christian Magistrates to use Exiles. Which if it be granted, it is demanded whether kind must be chosen. But that this kind of punishment is lawful, many Arguments persuade. First of all God commanded Adam to be banished when he cast him out of paradise. The same punishment he laid upon Cain. Wherefore he saith: This day doest thou cast me out from thy face. But God therefore did not slay him, because of the scarcity of men, or else for some other causes unknown unto us: yet nevertheless commanded him into Exile. So that (as I said before,) there were certain Cities of refuge appointed by the law of God, unto which they retired themselves, which unwittingly committed murder. Also it is manifest out of the book of Judges, that Giphtha, being cast out from his brethren, lived in Exile in the land of Tob. And king David, when Absalom was returned out of Gessair, banished him from the Court to his own house. Solomon also used
banishments against Abiathar and Semei. And as we have it in Amos the 7th Chapter, Amasias commanded the Prophet in the kings name, that he should depart out of the bounds of Samaria. Likewise in the law of God, the leapers were banished out of the Cities from the congregation of men unto solitary places. Yea and excommunication itself seemeth to be a certain kind of Exile. Insomuch as Christians are commanded to shun wicked men: neither is it lawful to admit those into society. Also natural reason admonisheth us hereof. For Cities are said to be certain bodies, and for the health of bodies, Phisitians have been accustomed to remove naughty humors and corrupt members, thinking it a great deal more safe, that they should be cast away, than that they being kept, should disturb the whole body. The same thing is observed in vines, which every year are pruned, least the unprofitable twigs should hurt the fruit. Also the unprofitable branches of trees are wont at certain times of the year to be shred and cut away. Here withal concurreth, that all sins are not alike, and that therefore all are not to be punished with death. Wherefore it appeareth that there is place left for banishment, neither is this kind of punishment unprofitable to them that are punished. For if they should dwell among their own Citizens, as well the fault committed, as also other kind of punishments would daily be cast in their teeth.
7. On the contrary part the Arguments are as many which dissuade very much from this kind of punishment. First that the law of God hath not prescribed a just Exile, seeing that which it commandeth as touching Cities of refuge, belonged not unto a just Exile. Further it behooveth that punishments be such as either they should make him better that is punished, or at the leastwise, should terrify others from sins: but Exile seemeth to perform neither of both. For they which are driven out of a City, are not
therefore made anything the better, but rather become the worse. Put the case that some man be cast forth of a City which professeth the Gospel, he perhaps goeth unto a papistical City, and there is made an Idolater. Add that Euripedes writeth that among other discommodities of banishment, there is taken away the liberty of speaking, for a stranger dare not in another country speak freely that which he thinketh. Although that he will retain the lawful worshipping of God, yet shall he hear many things against the same, and hardly will he be bold to defend it freely. Oftentimes did David while he was in Exile lament that he lacked the holy congregation and communion of the Sacrifices. Moreover in this respect are banished men made the worse, because they become enemies to their native country, and conceive hatred against it: and in such sort conceive it as they dare oftentimes join themselves with enemies, and as much as in them lieth betray their country unto them. And thus we read that Coriolanus did, when he went to the Volsi. The like Plutarch noting in a book entitled, The virtue and fortune of Alexander, taught that banishments are oftentimes certain seeds of wars. Certainly David himself, when he lived in Exile, was constrained even against his will, to come into battle with the Philistines against the Israelites. But if a man will say, that Camillus a banished man, delivered his country, and that the banished Athenians saved the City of Athens from 30 Tyrants: we answer, that so notable exploits happen not oftentimes but very seldom, but we must have regard unto those things which happen for the most part. Furthermore wicked men are not made the better by banishment, because they count that kind of punishment most easy. For they say with themselves: Although I shall depart hence, yet the Sun and Moon are also seen in other Regions: and that which some have done of a virtue, they do with dishonesty. For when it was objected against
a Philosopher that he should be banished, he answered that he was a Citizen of the world. Diogenes when he heard that the Citizens of Sinope had commanded, that he should be banished out of Pontus: said, I in like manner condemn them that they be perpetually upon the shores of Pontus
Euxinus. They allege also that Themistocles who while he lived in banishment, was very much enriched, and said unto those that were with him: Yong men, unless we had perished we should have been utterly undone. By such examples, banished men are made the bolder, and seldom are the better. Out of Caelius the 20th book 1st chapter, we have learned that L. Neracius having confidence in riches, was very proud and malapert, so that it was a game and pastime unto him to strike a free man on the face: upon which fault in very deed was laid a penalty of twenty-five pieces of money called Asses. Wherefore he carried a servant about with him, which ware a purse well stuffed with money: but he at his own pleasure bid beat very many, and straightaways commanded to pay them 25 pieces of that money. So then a light punishment doth the more easily provoke unto sin.
Here withal add, that banished men, seeing they know the secretes of a City, and discommodities of the Citizens, do very often show all those things unto the enemies. Moreover to excuse themselves, they defame their own
City: and the Citizens which be therein, and are held in estimation; they affirm them to be more wicked than themselves. And they set forth the examples of Socrates, Aristides, and Cicero, who were sometime driven into exile. Besides forth, if the avouterer and avouteress be cast out for adultery, they meet again together in another place, and persevere in the same wickedness. And when men have robbed in their own country, they being cast forth of the same, will not cease to rob elsewhere: so as their sins be not hindered by their banishment. Also this punishment seems to be
much against charity towards our neighbors. For when a province or City hath wicked men among them, they so disburden themselves, as they burden other Cities and provinces. Besides, they which so be cast forth, if they might abide in their country, would be more diligently marked, seeing they be there well known: but in another land, where they are not known, they both sin more easily and also escape unpunished. And at home Infamy would bear a stroke with them, and they would be ashamed, when as in another place, they live without shame. If Citizens should so send out one infected with the plague as they would command him to enter into other
Cities, those Cities would not only put him back, but would also complain and that grievously of those men. But if it would be unjust, as touching the sickness of the body, what are we to judge concerning the vices of the mind? Also if a man by poison kill a condemned man, he should be accounted most wicked: Howbeit to send mischievous men into strange lands, seemeth to be nothing else but to infect them. There might be other
Arguments and that very many to persuade on this behalf, but these seem to be the chiefest.
8. Now are we to determine which may seem to be the right way.
Doubtless it appeareth unto me that either part is to be embraced: and I would say, that the use of banishments is after some sort to be retained, but not so, that banished men should be sent unto others, among whom they should become the worse, and to infect them. Wherefore they ought to be banished within the bounds of the dominion subject unto the Magistrate.
For wicked men should the easilier be restrained, if it were not free for them to wander here and there, and according to the greatness or lightness of their offense, so may they limit unto them places more painful or more commodious. And assuredly God when he would banish Adam and Cain, he
sent them not forth of his dominion. Further the laws of Moses so appointed the Cities of refuge, as he would have them to be certain. But thou wilt say:
Then will all places be filled with banished men: I answer that we must not easily be led unto this kind of punishment. For there be other kinds of punishments, as are prisonments, lessening of substance, removing from offices, and diverse other. Moreover God sent not into exile, Core, Dathan, and Abiron, when they were seditious men: neither did he condemn unto banishment Achan a heinous offender. Banishments then must be used otherwhile, but not often. The Roman laws when liberty stood, did not cast forth into Exile (as it hath been said) although they suffered, such as were willing to depart. David banished Absalom, but not out of the bounds [of his dominion.] Solomon also commanded that Abiathar and Semei should be banished, but he cast them not forth of Jerusalem. Jephtha also was cast out by his brethren, but yet into the land of Tob which is thought to have been in the tribe of Gad. Neither is there any need to take an example of wicked
Amasias, although he cast not forth the prophet out of the tribes of the Jews: for he sent him into the tribe of Judah. Also the Leapers were commanded by the law to be out of the Cities, and to wander among desolate places, yet were they not sent away unto strange Nations, neither was it a sin to be stricken with leprosy. So then, that separation must not be counted a punishment, but rather a certain caution, least they that were whole should be infected. Excommunication which was said to be a certain kind of banishment, doth not utterly cast men out of the Church: because it is lawful for the excommunicates to hear the word of God. Further they are admonished by the faithful, although it be not lawful to be conversant with them for the soul sake. Moreover the Church ceaseth not to pray for them, that they may repent and return into the way again. True in deed it is, that ill
humors are driven out of the body: and corrupt members out of the Commonwealth, unfruitful twigs and bows are cut off, as well from vines as from trees: howbeit between these things and banished men there is no just comparison: for these things being cut off and expelled, cannot hurt as do banished men, who are wont to hurt both themselves and others also.
Besides, true it is which is commonly said, that an evil must be corrected where it is bred. But some man will object that it would be unprofitable, if banished men should be had in such places: for there perhaps they cannot do or occupy anything. Hereunto may be said, they are banished unto work.
In times past lewd men were sent away unto the Quarries and Mines. And at this day in many places, they are sent into Gallies, that they may neither hurt themselves nor others, and that they may labor with some profit to the Commonwealth. By this means might the inconveniences which come by banished men be taken away. These things undoubtedly are not set down of us by reasons Demonstrative, but confirmed as me thinketh by probable reasons. This moreover I think good to add, that if any through fear fly away of their own accord, the City is not therefore to be blamed, because it could not let them. But yet it seemeth not to be well advised, if afterward it forbiddeth them to return. Better it should be to suffer them to return, whom being returned, they may send out unto such places as they shall think to be due unto their misdeeds.