Page images
PDF
EPUB

PART II.

27.

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.

Presumption of power aggravateth.

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 shewn 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

Evil teachers extenuate.

27.

actions on his private judgment, ought, accord- Part II. ing to the rectitude, or error thereof, to stand or fall.

The same fact, if it have been constantly punished Examples of in other men, is a greater crime, than if there have extenuate. 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 Premeditation

aggravateth. 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 wbich, 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 enquire 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

27.

Tacit appro

bation of the sovereign extenuates.

PART 11. 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 law-maker 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 law-maker 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 approba tion, 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, be 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 war. 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 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 govern their actions,

27.

than the laws themselves. And though it be PART II. our duty to do, not what they do, but what they say ; yet will that duty never be performed, 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 Comparison of their effects; first, the same fact, when it redounds their effects. 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 multiplies to the hurt of many; the latter is barren. To maintain doctrines contrary to the religion established in the commonwealth, is a greater fault, 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 the weakening of the sovereign power, is a greater crime, than in another 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 commit crime, but teach it for law to all other men. And generally all 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 man carry before them.

Also facts of hostility against the present state Lasa stas

27.

PART 11. 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 læse majestatis, and consist in design, or act, con

trary to a fundamental law. Bribery and Likewise those crimes, which render judgments false testimony

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. Depeculation.

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. Counterfeiting Also the counterfeit usurpation of public minisauthority.

try, 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. Crimes against Of facts against the law, done to private men, private men compared the greater crime, is that, where the damage in the

common opinion of men, is most sensible. And therefore

« PreviousContinue »