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 than the laws themselves. And though it be 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 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 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 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.

Tenthly, hurt inflicted on the representative of 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.

Lastly, harm inflicted upon one that is a declared enemy, falls not under the name of punishment: 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 infliction 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 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.

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"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.

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Corporal punishment" is that which is inflicted 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, 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 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 unishment 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," 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

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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; or declaring them incapable of the like in time to come.

“Imprisonment" is when a man is by public authority 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 impedi

ment.

"Exile" (banishment) is when a man is for a crime 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 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.

All punishments of innocent subjects, be they great or little, are against the law of Nature; for 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 innocent man that is not a subject, if it be for the benefit of the commonwealth, and without violation of any former covenant, is no breach of the law of Nature. For all men that are not subjects, are either enemies, or else they have ceased from being so by some precedent covenants. But against enemies, whom the commonwealth judgeth capable to do them hurt, it is lawful by the original