nor shall any man, that pretendeth to reason enough for the government of his own affairs, be supposed to want means to know the laws of Nature; because they are known by the reason he pretends to: only children and madmen are excused from offences against the law natural.

Where a man is captive, or in the power of the enemy (and he is then in the power of the enemy when his person or his means of living is so), if it be without his own fault, the obligation of the law ceaseth; because he must obey the enemy or die; and consequently such obedience is no crime: for no man is obliged, when the protection of the law faileth, not to protect himself by the best means he can.

If a man, by the terror of present death, be compelled to do a fact against the law, he is totally excused; because no law can oblige a man to abandon his own preservation. And supposing such a law were obligatory, yet a man would reason thus: "If I do it not, I die presently; if I do it, I die afterwards; therefore by doing it, there is time of life gained." Nature therefore compels him to the fact.

When a man is destitute of food, or other thing necessary for his life, and cannot preserve himself any other way but by some fact against the law; as if in a great famine he take the food by force or stealth, which he cannot obtain for money nor charity; or in defence of his life snatch away another man's sword; he is totally excused, for the reason next before alleged.

Again, facts done against the law by the authority of another, are by that authority excused against the author; because no man ought to accuse his own fact in another that is but his instrument: but it is not excused against a third person thereby injured; because in the violation of the law, both the author and actor are criminals. From hence it followeth that when that man or assembly, that hath the sovereign power, commandeth a man to do that which is contrary to a former law, the doing of it is totally excused for he ought not to condemn it himself, because he is the author; and what cannot justly be condemned by the sovereign, cannot justly be punished by any other. Besides, when the sovereign commandeth anything to be done against his own former law, the command, as to that particular fact, is an abrogation of the law.

If that man, or assembly that hath the sovereign power, disclaim any right essential to the sovereignty, whereby there accrueth to the subject any liberty inconsistent with the sovereign power, that is to say, with the very being of a commonwealth, if the subject shall refuse to obey the command in anything contrary to the liberty granted, this is nevertheless a sin, and contrary to the duty of the subject: for he ought to take notice of what is inconsistent with the sovereignty, because it was erected by his own consent and for his own defence; and that such liberty as is inconsistent with it was granted through ignorance of the evil consequence thereof. But if he not only disobey, but also resist a public minister in the execution of it, then it is a crime, because he might have been righted, without any breach of the peace, upon complaint.

The degrees of crime are taken on divers scales, and measured, first, by the malignity of the source or cause; secondly, by the contagion of the example; thirdly, by the mischief of the effect; and fourthly, by the concurrence of times, places, and persons.

The same fact done against the law, if it proceed from presumption of strength, riches, or friends to resist those that are to execute the law, is a greater crime than if it proceed from hope of not being discovered, or of escape by flight : for presumption of impunity by force is a root from whence springeth, at all times, and upon all temptations, a contempt of all laws; whereas, in the latter case, the apprehension of danger that makes a

man fly, renders him more obedient for the future. A crime which we know to be so, is greater than the same crime proceeding from a false persuasion that it is lawful; for he that committeth it against his own conscience, presumeth on his force or other power, which encourages him to commit the same again: but he that doth it by error, after the error is shown him, is conformable to the law.

He whose error proceeds from the authority of a teacher, or an interpreter of the law publicly authorized, is not so faulty as he whose error proceedeth from a peremptory pursuit of his own principles and reasoning; for what is taught by one that teacheth by public authority, the commonwealth teacheth, and hath a resemblance of law till the same authority controlleth it; and in all crimes that contain not in them a denial of the sovereign power, nor are against an evident law, excuseth totally: whereas he that groundeth his actions on his private judgment, ought, according to the rectitude or error thereof, to stand or fall.

The same fact, if it have been constantly punished in other men, is a greater crime than if there have been many precedent examples of impunity. For those examples are so many hopes of impunity, given by the sovereign himself; and because he which furnishes a man with such a hope and presumption of mercy, as encourageth him to offend, hath his part in the offence, he cannot reasonably charge the offender with the whole.

A crime arising from a sudden passion is not so great as when the same ariseth from long meditation; for in the former case there is a place for extenuation, in the common infirmity of human nature; but he that doth it with premeditation, has used circumspection, and cast his eye on the law, on the punishment, and on the consequence thereof to human society; all which, in committing the crime, he hath contemned and postposed to his own appetite. But there is no suddenness of passion sufficient for a total excuse for all the time between the first knowing of the law and the commission of the fact, shall be taken for a time of deliberation: because he ought by meditation of the law to rectify the irregularity of his passions.

Where the law is publicly, and with assiduity, before all the people read and interpreted, a fact done against it is a greater crime than where men are left without such instruction, to inquire of it with difficulty, uncertainty, and interruption of their callings, and be informed by private men ; for in this case part of the fault is discharged upon common infirmity; but, in the former, there is apparent negligence, which is not without some contempt of the sovereign power.

Those facts which the law expressly condemneth, but the lawmaker by other manifest signs of his will tacitly approveth, are less crimes than the same facts condemned both by the law and lawmaker. For seeing the will of the lawmaker is a law, there appear in this case two contradictory laws; which would totally excuse, if men were bound to take notice of the sovereign's approbation by other arguments than are expressed by his command. But because there are punishments consequent, not only to the transgression of his law, but also to the observing of it, he is in part a cause of the transgression, and therefore cannot reasonably impute the whole crime to the delinquent. For example, the law condemneth duels; the punishment is made capital. On the contrary part, he that refuseth duel is subject to contempt and scorn, without remedy; and sometimes by the sovereign himself thought unworthy to have any charge or preferment in If thereupon he accept duel, considering all men lawfully endeavour to obtain the good opinion of them that have the sovereign power, he ought not in reason to be rigorously punished, seeing part of the fault may be discharged on the punisher; which I say, not as wishing liberty of private

war.

revenges or any other kind of disobedience, but a care in governors not to
countenance anything obliquely which directly they forbid. The examples
of princes, to those that see them, are, and ever have been, more potent to
And though it be our duty
govern their actions than the laws themselves.
to do, not what they do, but what they say, yet will that duty never be per-
formed till it please God to give men an extraordinary and supernatural
grace to follow that precept.

Again, if we compare crimes by the mischief of their effects; first, the
same fact, when it redounds to the damage of many, is greater than when it
redounds to the hurt of few; and therefore, when a fact hurteth, not only
in the present, but also, by example, in the future, it is a greater crime
than if it hurt only in the present: for the former is a fertile crime, and
To maintain doctrines
multiplies to the hurt of many; the latter is barren.

a greater fault contrary to the religion established in the commonwealth, in an authorized preacher than in a private person; so also is it to live profanely, incontinently, or do any irreligious act whatsoever. Likewise in a professor of the law, to maintain any point, or do any act that tendeth to a greater crime than in another the weakening of the sovereign power, man. Also in a man that hath such reputation for wisdom as that his counsels are followed or his actions imitated by many, his fact against the law is a greater crime than the same fact in another: for such men not only And generally all commit crime, but teach it for law to all other men. crimes are the greater by the scandal they give: that is to say, by becoming stumbling-blocks to the weak, that look not so much upon the way they go in, as upon the light that other men carry before them.

Also facts of hostility against the present state of the commonwealth, are greater crimes than the same acts done to private men: for the damage extends itself to all: such are the betraying of the strengths or revealing of the secrets of the commonwealth to an enemy; also all attempts upon the representative of the commonwealth, be it a monarch or an assembly; and all endeavours by word, or deed, to diminish the authority of the same, either in the present time or in succession: which crimes the Latins understand by crimina læsæ majestatis, and consist in design, or act, contrary to a fundamental law.

Likewise those crimes, which render judgments of no effect, are greater crimes than injuries done to one or a few persons; as to receive money to give false judgment or testimony, is a greater crime than otherwise to deceive a man of the like, or a greater sum; because not only he has wrong that falls by such judgments; but all judgments are rendered useless, and occasion ministered to force and private revenges.

Also robbery, and depeculation of the public treasure or revenues, is a greater crime than the robbing or defrauding of a private man; because to rob the public, is to rob many at once.

Also the counterfeit usurpation of public ministry, the counterfeiting of public seals or public coin, than counterfeiting of a private man's person or his seal; because the fraud thereof extendeth to the damage of many.

Of facts against the law, done to private men, the greater crime is that where the damage, in the common opinion of men, is most sensible, and therefore

To kill against the law, is a greater crime, than any other injury, life preserved.

And to kill with torment, greater than simply to kill.

And mutilation of a limb, greater than the spoiling a man of his goods. And the spoiling a man of his goods by terror of death or wounds, than by clandestine surreption.

And by clandestine surreption, than by consent fraudulently obtained.

And the violation of chastity by force, greater than by flattery.

And of a woman married, than of a woman not married.

For all these things are commonly so valued; though some men are more, and some less, sensible of the same offence. But the law regardeth not the particular, but the general inclination of mankind.

And therefore the offence men take, from contumely, in words or gesture, when they produce no other harm than the present grief of him that is reproached, hath been neglected in the laws of the Greeks, Romans, and other both ancient and modern commonwealths; supposing the true cause of such grief to consist, not in the contumely, which takes no hold upon men conscious of their own virtue, but in the pusillanimity of him that is offended by it.

Also a crime against a private man is much aggravated by the person, time, and place. For to kill one's parent, is a greater crime than to kill another: for the parent ought to have the honour of a sovereign, though he surrendered his power to the civil law; because he had it originally by nature. And to rob a poor man, is a greater crime than to rob a rich man; because it is to the poor a more sensible damage.

And a crime committed in the time or place appointed for devotion is greater than if committed at another time or place: for it proceeds from a greater contempt of the law.

Many other cases of aggravation and extenuation might be added: but by these I have set down, it is obvious to every man to take the altitude of any other crime proposed.

Lastly, because in almost all crimes there is an injury done not only to some private men, but also to the commonwealth, the same crime, when the accusation is in the name of the commonwealth, is called public crime: and when in the name of a private man, a private crime; and the pleas according thereunto called public, judicia publica, Pleas of the Crown, or Private Pleas. As in an accusation of murder, if the accuser be a private man, the plea is a Private Plea; if the accuser be the sovereigu, the plea is a Public Plea.

CHAPTER XXVIII.

Of Punishments and Rewards.

A PUNISHMENT "is an evil inflicted by public authority on him that hath done or omitted that which is judged by the same authority to be a transgression of the law; to the end that the will of men may thereby the better be disposed to obedience."

Before I infer anything from this definition, there is a question to be answered of much importance; which is, by what door the right or authority of punishing in any case came in. For by that which has been said before, no man is supposed bound by covenant, not to resist violence; and consequently it cannot be intended that he gave any right to another to lay violent hands upon his person. In the making of a commonwealth, every man giveth away the right of defending another, but not of defending himself. Also he obligeth himself to assist him that hath the sovereignty in the punishing of another; but of himself not. But to covenant to assist the sovereign in doing hurt to another, unless he that so covenanteth have a right to do it himself, is not to give him a right to punish. It is manifest therefore that the right which the commonwealth, that is, he or they that represent it, hath to punish is not grounded on any concession or gift of the subjects.

But I have also showed formerly, that before the institution of commonwealth every man had a right to everything, and to do whatsoever he thought necessary to his own preservation; subduing, hurting, or killing any man in order thereunto. And this is the foundation of that right of punishing which is exercised in every commonwealth. For the subjects did not give the sovereign that right; but only in laying down theirs, strengthened him to use his own, as he should think fit, for the preservation of them all: so that it was not given, but left to him, and to him only; and (excepting the limits set him by natural law) as entire as in the condition of mere nature, and of war of every one against his neighbour.

From the definition of punishment, I infer, first, that neither private revenges, nor injuries of private men, can properly be styled punishment; because they proceed not from public authority.

Secondly, that to be neglected, and unpreferred by the public favour, is not a punishment; because no new evil is thereby on any man inflicted; he is only left in the estate he was in before.

Thirdly, that the evil inflicted by public authority, without precedent public condemnation, is not to be styled by the name of punishment, but of an hostile act; because the fact for which a man is punished, ought first to be judged by public authority, to be a transgression of the law.

Fourthly, that the evil inflicted by usurped power, and judges without authority from the sovereign, is not punishment, but an act of hostility; because the acts of power usurped have not for author the person condemned, and therefore are not acts of public authority.

Fifthly, that all evil which is inflicted without intention, or possibility of disposing the delinquent, or, by his example, other men, to obey the laws, is not punishment, but an act of hostility; because without such an end, no hurt done is contained under that name.

Sixthly, whereas to certain actions there be annexed by nature, divers hurtful consequences; as when a man in assaulting another is himself slain or wounded; or when he falleth into sickness by the doing of some unlawful act; such hurt, though in respect of God, who is the author of nature, it may be said to be inflicted, and therefore a punishment divine; yet it is not contained in the name of punishment in respect of men, because it is not inflicted by the authority of man.

Seventhly, if the harm inflicted be less than the benefit or contentment that naturally followeth the crime committed, that harm is not within the definition; and is rather the price, or redemption, than the punishment of a crime: because it is of the nature of punishment to have for end the disposing of men to obey the law; which end, if it be less than the benefit of the transgression, it attaineth not, but worketh a contrary effect.

Eighthly, if a punishment be determined and prescribed in the law itself, and after the crime committed, there be a greater punishment inflicted, the excess is not punishment, but an act of hostility. For seeing the aim of punishment is not a revenge, but terror; and the terror of a great punishment unknown, is taken away by the declaration of a less, the unexpected addition is no part of the punishment. But where there is no punishment at all determined by the law, there whatsoever is inflicted hath the nature of punishment. For he that goes about the violation of a law, wherein no penalty is determined, expecteth an indeterminate, that is to say, an arbitrary punishment.

Ninthly, harm inflicted for a fact done before there was a law that forbade it, is not punishment, but an act of hostility: for before the law, there is no transgression of the law: but punishment supposeth a fact judged, to have been transgression of the law; therefore harm inflicted before the law made, is not punishment, but an act of hostility.