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PART II. tendeth to reason enough for the government of his own affairs, be supposed to want means to Total excuses. 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.

Excuses against

the author.

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

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against the author; because no man ought to PART II. accuse his own fact in another, that is but his instrument: but it is not excused against a third Excuses person thereby injured; because in the violation the author. 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.

VOL. III.

U

PART II. 27.

Presumption of power aggravateth.

Evil teachers extenuate.

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 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

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

impunity

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.

aggravateth.

A crime arising from a sudden passion, is not so Premeditation 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 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

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PART II. upon common infirmity; but, in the former, there is apparent negligence, which is not without some contempt of the sovereign power.

Tacit approbation of the sovereign extenuates.

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 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 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,