Page images
PDF
EPUB

27.

To kill against the law, is a greater crime, than PART II. any other injury, life preserved. And to kill with torment, greater, than simply Crimes against

private men to kill.

compared. 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

27.

PART II. 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 sovereign, the plea is a Public Plea.

Public crimes what.

CHAPTER XXVIII.

OF PUNISHMENTS AND REWARDS.

28.

A PUNISHMENT, is an evil inflicted by public au- PART II. thority, on him that hath done, or omitted that which is judged by the same authority to be a The definition

of punishment. transgression of the law; to the end that the will of men may thereby the better be disposed to obedience.

Before I infer any thing from this definition, Right to punish 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 him

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

self not.

28.

PART 11. 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. Private injuries From the definition of punishment, I infer, first, punishments. 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 preferment;

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. Nor pain in- Thirdly, that the evil inflicted by public aupublic hearing; thority, 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 au

thority, to be a transgression of the law. Nor pain

Fourthly, that the evil inflicted by usurped inflicted by usurped power; power, and judges without authority from the so

vereign, 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

Nor denial of

flicted without

28.

consequences

if less than the

intention, or possibility of disposing the delinquent, PART 11. or, by his example, other men, to obey the laws, is not punishment; but an act of hostility: because Nor pain inwithout such an end, no hurt done is contained respect to the under that name.

future good. Sixthly, whereas to certain actions, there be Natural evil annexed by nature, divers hurtful consequences ; no punishas when a man in assaulting another, is himself ments. 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 Hurt inflicted, benefit, or contentment that naturally followeth benefitoftrans

gressing, is not the crime committed, that harm is not within the punishment. 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 where the

punishment is prescribed in the law itself, and after the crime annexed to the committed, there be a greater punishment inflicted, hurt is not the excess is not punishment, but an act of hosti- punishment,

but hostility. lity. 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

law, a greater

« PreviousContinue »