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Hurt inflicted for a fact done
tative of the
PART II. whatsoever is inflicted, hath the nature of punish
ment. 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 before the law, there was a law that forbade it, is not punishment, no 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 a transgression of the law; therefore harm inflicted before the law made, is not punishment, but an act of hostility.
Tenthly, hurt inflicted on the representative of commonwealth the commonwealth, is not punishment, but an act
of hostility: because it is of the nature of punishment, to be inflicted by public authority, which is
the authority only of the representative itself. Hurt to re
Lastly, harm inflicted upon one that is a devolted subjects is done by right clared enemy, falls not under the name of punishway of punish- ment: because seeing they were either never subject
to the law, and therefore cannot transgress it ; or having been subject to it, and professing to be no longer so, by consequence deny they can transgress it, all the harms that can be done them, must be taken as acts of hostility. But in declared hostility, all infiction of evil is lawful. From whence it followeth, that if a subject shall by fact, or word, wittingly, and deliberately deny the authority of the representative of the commonwealth (whatsoever penalty hath been formerly ordained for treason) he may lawfully be made to suffer whatsoever the representative will. For in denying subjection, he denies such punishment as by the law hath been
ordained; and therefore suffers as an enemy of the PART II. commonwealth ; that is, according to the will of the representative. For the punishments set down in the law, are to subjects, not to enemies ; such as are they, that having been by their own acts subjects, deliberately revolting, deny the sovereign power.
The first, and most general distribution of punishments, is into divine, and human. Of the former I shall have occasion to speak, in a more convenient place hereafter.
Human, are those punishments that be inflicted by the commandment of man; and are either corporal, or pecuniary, or ignominy, or imprisonment, or exile, or mixed of these. Corporal punishment is that, which is inflicted Punishments
corporal. on the body directly, and according to the intention of him that inflicteth it: such as are stripes, or wounds, or deprivation of such pleasures of the body, as were before lawfully enjoyed.
And of these, some be capital, some less than Capital. capital. Capital, is the infliction of death ; and that either simply, or with torment. Less than capital, are stripes, wounds, chains, and any other corporal pain, not in its own nature mortal. For if
upon the infliction of a punishment death follow not in the intention of the inflictor, the punishment is not to be esteemed capital, though the harm prove mortal by an accident not to be foreseen; in which case death is not inflicted, but hastened.
Pecuniary punishment, is that which consisteth not only in the deprivation of a sum of money, but also of lands, or any other goods which are usually
PART 11. bought and sold for money. And in case the law,
that ordaineth such a punishment, be made with design to gather money, from such as shall transgress the same, it is not properly a punishment, but the price of privilege and exemption from the law, which doth not absolutely forbid the fact, but only to those that are not able to pay the money : except where the law is natural, or part of religion; for in that case it is not an exemption from the law, but a transgression of it. As where a law exacteth a pecuniary mulct, of them that take the name of God in vain, the payment of the mulct, is not the price of a dispensation to swear, but the punishment of the transgression of a law indispensable. In like manner if the law impose a sum of money to be paid, to him that has been injured ; this is but a satisfaction for the hurt done him ; and extinguisheth the accusation of the party injured, not
the crime of the offender. Ignominy. Ignominy, is the infliction of such evil, as is made
dishonourable ; or the deprivation of such good, as is made honourable by the commonwealth. For there be some things honourable by nature; as the effects of courage, magnanimity, strength, wisdom, and other abilities of body and mind: others made honourable by the commonwealth ; as badges, titles, offices, or any other singular mark of the sovereign's favour. The former, though they may fail by nature, or accident, cannot be taken away by a law ; and therefore the loss of them is not punishment. But the latter, may be taken away by the public authority that made them honourable, and are properly punishments : such are degrading
men condemned, of their badges, titles, and offices; PART II. or declaring them incapable of the like in time to
Imprisonment, is when a man is by public autho- Imprisonment. rity deprived of liberty; and may happen from two divers ends; whereof one is the safe custody of a man accused; the other is the inflicting of pain on a man condemned. The former is not punishment; because no man is supposed to be punished, before he be judicially heard, and declared guilty. And therefore whatsoever hurt a man is made to suffer by bonds, or restraint, before his cause be heard, over and above that which is necessary to assure his custody, is against the law of nature. But the latter is punishment, because evil, and inflicted by public authority, for somewhat that has by the same authority been judged a transgression of the law. Under this word imprisonment, I comprehend all restraint of motion, caused by an external obstacle, be it a house, which is called by the general name of a prison ; or an island, as when men are said to be confined to it; or a place where men are set to work, as in old time men have been condemned to quarries, and in these times to galleys; or be it a chain, or any other such impediment.
Exile (banishment) is when a man is for a crime, Exile. condemned to depart out of the dominion of the commonwealth, or out of a certain part thereof : and during a prefixed time, or for ever, not to return into it: and seemeth not in its own nature, without other circumstances, to be a punishment; but rather an escape, or a public commandment to avoid punishment by flight. And Cicero says, there
PART II. was never any such punishment ordained in the
city of Rome; but calls it a refuge of men in danger. For if a man banished, be nevertheless permitted to enjoy his goods, and the revenue of his lands, the mere change of air is no punishment, nor does it tend to that benefit of the commonwealth, for which all punishments are ordained, that is to say, to the forming of men's wills to the observation of the law; but many times to the damage of the commonwealth. For a banished man, is a lawful enemy of the commonwealth that banished him; as being no more a member of the same. But if he be withal deprived of his lands, or goods, then the punishment lieth not in the exile, but is to be
reckoned amongst punishments pecuniary. The punish- All punishments of innocent subjects, be they ment of innocent subjects is great or little, are against the law of nature; for law of nature. punishment is only for transgression of the law, and
therefore there can be no punishment of the innocent. It is therefore a violation, first, of that law of nature, which forbiddeth all men, in their revenges, to look at anything but some future good : for there can arrive no good to the commonwealth, by punishing the innocent. Secondly, of that, which forbiddeth ingratitude: for seeing all sovereign power, is originally given by the consent of every one of the subjects, to the end they should as long as they are obedient, be protected thereby ; the punishment of the innocent, is a rendering of evil for good. And thirdly, of the law that commandeth equity; that is to say, an equal distribution of justice; which in punishing the innocent is not observed.
But the infliction of what evil soever, on an in