Books: Leviathan

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Hatred, Lust, Ambition, Covetousnesse, Causes Of Crime
As for the Passions, of Hate, Lust, Ambition, and Covetousnesse,
what Crimes they are apt to produce, is so obvious to every mans
experience and understanding, as there needeth nothing to be said
of them, saving that they are infirmities, so annexed to the nature,
both of man, and all other living creatures, as that their effects
cannot be hindred, but by extraordinary use of Reason, or a constant
severity in punishing them. For in those things men hate,
they find a continuall, and unavoydable molestation; whereby either
a mans patience must be everlasting, or he must be eased by removing
the power of that which molesteth him; The former is difficult;
the later is many times impossible, without some violation of the Law.
Ambition, and Covetousnesse are Passions also that are perpetually
incumbent, and pressing; whereas Reason is not perpetually present,
to resist them: and therefore whensoever the hope of impunity appears,
their effects proceed. And for Lust, what it wants in the lasting,
it hath in the vehemence, which sufficeth to weigh down the apprehension
of all easie, or uncertain punishments.

Fear Sometimes Cause Of Crime, As When
The Danger Is Neither Present, Nor Corporeall
Of all Passions, that which enclineth men least to break the Lawes,
is Fear. Nay, (excepting some generous natures,) it is the onely thing,
(when there is apparence of profit, or pleasure by breaking the Lawes,)
that makes men keep them. And yet in many cases a Crime may be
committed through Feare.

For not every Fear justifies the Action it produceth, but the fear
onely of corporeall hurt, which we call Bodily Fear, and from
which a man cannot see how to be delivered, but by the action.
A man is assaulted, fears present death, from which he sees not
how to escape, but by wounding him that assaulteth him; If he wound
him to death, this is no Crime; because no man is supposed at the
making of a Common-wealth, to have abandoned the defence of his life,
or limbes, where the Law cannot arrive time enough to his assistance.
But to kill a man, because from his actions, or his threatnings,
I may argue he will kill me when he can, (seeing I have time,
and means to demand protection, from the Soveraign Power,) is a Crime.
Again, a man receives words of disgrace, or some little injuries
(for which they that made the Lawes, had assigned no punishment,
nor thought it worthy of a man that hath the use of Reason,
to take notice of,) and is afraid, unlesse he revenge it,
he shall fall into contempt, and consequently be obnoxious
to the like injuries from others; and to avoyd this, breaks
the Law, and protects himselfe for the future, by the terrour
of his private revenge. This is a Crime; For the hurt is not
Corporeall, but Phantasticall, and (though in this corner of
the world, made sensible by a custome not many years since begun,
amongst young and vain men,) so light, as a gallant man, and one
that is assured of his own courage, cannot take notice of.
Also a man may stand in fear of Spirits, either through his own
superstition, or through too much credit given to other men,
that tell him of strange Dreams and visions; and thereby be made
believe they will hurt him, for doing, or omitting divers things,
which neverthelesse, to do, or omit, is contrary to the Lawes;
And that which is so done, or omitted, is not to be Excused by this fear;
but is a Crime. For (as I have shewn before in the second Chapter)
Dreams be naturally but the fancies remaining in sleep, after the
impressions our Senses had formerly received waking; and when men
are by any accident unassured they have slept, seem to be reall Visions;
and therefore he that presumes to break the Law upon his own,
or anothers Dream, or pretended Vision, or upon other Fancy
of the power of Invisible Spirits, than is permitted by the
Common-wealth, leaveth the Law of Nature, which is a certain offence,
and followeth the imagery of his own, or another private mans brain,
which he can never know whether it signifieth any thing, or nothing,
nor whether he that tells his Dream, say true, or lye; which if
every private man should have leave to do, (as they must by the
Law of Nature, if any one have it) there could no Law be made to hold,
and so all Common-wealth would be dissolved.

Crimes Not Equall
From these different sources of Crimes, it appeares already,
that all Crimes are not (as the Stoicks of old time maintained)
of the same allay. There is place, not only for EXCUSE,
by which that which seemed a Crime, is proved to be none at all;
but also for EXTENUATION, by which the Crime, that seemed great,
is made lesse. For though all Crimes doe equally deserve the name
of Injustice, as all deviation from a strait line is equally
crookednesse, which the Stoicks rightly observed; yet it does not
follow that all Crimes are equally unjust, no more than that all
crooked lines are equally crooked; which the Stoicks not observing,
held it as great a Crime, to kill a Hen, against the Law,
as to kill ones Father.

Totall Excuses
That which totally Excuseth a Fact, and takes away from it the
nature of a Crime, can be none but that, which at the same time,
taketh away the obligation of the Law. For the fact committed
once against the Law, if he that committed it be obliged to the Law,
can be no other than a Crime.

The want of means to know the Law, totally Excuseth: For the Law
whereof a man has no means to enforme himself, is not obligatory.
But the want of diligence to enquire, shall not be considered
as a want of means; Nor shall any man, that pretendeth to reason
enough for the Government of his own affairs, be supposed to want
means to know the Lawes of Nature; because they are known by the
reason he pretends to: only Children, and Madmen are Excused from
offences against the Law Naturall.

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 dye;
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 terrour of present death, be compelled to doe
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
doe it not, I die presently; if I doe it, I die afterwards;
therefore by doing it, there is time of life gained;" Nature therefore
compells him to the fact.

When a man is destitute of food, or other thing necessary for his life,
and cannot preserve himselfe 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 obtaine for mony nor charity; or in defence of his life,
snatch away another mans Sword, he is totally Excused, for the reason
next before alledged.

Excuses Against The Author
Again, Facts done against the Law, by the authority of another,
are by that authority Excused against the Author; because no man
ought to accuse his own fact in another, that is but his instrument:
but it is not Excused against a third person thereby injured;
because in the violation of the law, bothe the Author, and Actor
are Criminalls. From hence it followeth that when that Man,
or Assembly, that hath the Soveraign 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 himselfe,
because he is the Author; and what cannot justly be condemned
by the Soveraign, cannot justly be punished by any other.
Besides, when the Soveraign commandeth any thing 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 Soveraign Power, disclaime
any Right essentiall to the Soveraignty, whereby there accrueth
to the Subject, any liberty inconsistent with the Soveraign Power,
that is to say, with the very being of a Common-wealth, if the Subject
shall refuse to obey the Command in any thing, contrary to the
liberty granted, this is neverthelesse a Sinne, and contrary to
the duty of the Subject: for he ought to take notice of what is
inconsistent with the Soveraignty, 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 evill
consequence thereof. But if he not onely disobey, but also resist
a publique 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.

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 mischiefe 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 Lawes; whereas in the later 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 perswasion that
it is lawfull: 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 errour, after the errour
shewn him, is conformable to the Law.

Evill Teachers, Extenuate
Hee, whose errour proceeds from the authority of a Teacher,
or an Interpreter of the Law publiquely authorised, is not so faulty,
as he whose errour proceedeth from a peremptory pursute of his
own principles, and reasoning: For what is taught by one that
teacheth by publique Authority, the Common-wealth teacheth,
and hath a resemblance of Law, till the same Authority controuleth it;
and in all Crimes that contain not in them a denyall of the
Soveraign Power, nor are against an evident Law, Excuseth totally:
whereas he that groundeth his actions, on his private Judgement,
ought according to the rectitude, or errour thereof, to stand, or fall.

Examples Of Impunity, Extenuate
The same Fact, if it have been constantly punished in other men,
as a greater Crime, than if there have been may precedent
Examples of impunity. For those Examples, are so many hopes
of Impunity given by the Soveraign himselfe: 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.

Praemeditation, Aggravateth;
A Crime arising from a sudden Passion, is not so 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
humane nature: but he that doth it with praemeditation, has used
circumspection, and cast his eye, on the Law, on the punishment,
and on the consequence thereof to humane society; all which
in committing the Crime, hee hath contemned, and postposed to
his own appetite. But there is no suddennesse of Passion sufficient
for a totall 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 rectifie the irregularity of his Passions.

Where the Law is publiquely, 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 upon common infirmity; but in the
former there is apparent negligence, which is not without some
contempt of the Soveraign Power.

Tacite Approbation Of The Soveraign, Extenuates
Those facts which the Law expresly condemneth, but the Law-maker
by other manifest signes of his will tacitly approveth, are lesse 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 Lawes; which would totally Excuse,
if men were bound to take notice of the Soveraigns approbation,
by other arguments, than are expressed by his command. But because
there are punishments consequent, not onely 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
Duells; the punishment is made capitall: On the contrary part,
he that refuseth Duell, is subject to contempt and scorne,
without remedy; and sometimes by the Soveraign himselfe thought
unworthy to have any charge, or preferment in Warre: If thereupon
he accept Duell, considering all men lawfully endeavour to obtain
the good opinion of them that have the Soveraign 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 Governours, not to countenance any thing 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 Lawes 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 supernaturall grace to follow that Precept.

Comparison Of Crimes From Their Effects
Again, if we compare Crimes by the mischiefe of their Effects,
First, the same fact, when it redounds to the dammage of many,
is greater, than when it redounds to the hurt of few. And therefore,
when a fact hurteth, not onely in the present, but also, (by example)
in the future, it is a greater Crime, than if it hurt onely
in the present: for the former, is a fertile Crime, and multiplyes
to the hurt of many; the later is barren. To maintain doctrines
contrary to the Religion established in the Common-wealth, is a
greater fault, in an authorised Preacher, than in a private person:
So also is it, to live prophanely, incontinently, or do any
irreligious act whatsoever. Likewise in a Professor of the Law,
to maintain any point, on do any act, that tendeth to the weakning
of the Soveraign Power, as a greater Crime, than in another man:
Also in a man that hath such reputation for wisedome, as that his
counsells 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 onely commit Crime, but teach it for Law to
all other men. And generally all Crimes are the greater,
by the scandall 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.

Laesae Majestas
Also Facts of Hostility against the present state of the Common-wealth,
are greater Crimes, than the same acts done to private men;
For the dammage extends it selfe to all: Such are the betraying
of the strengths, or revealing of the secrets of the Common-wealth
to an Enemy; also all attempts upon the Representative of the
Common-wealth, 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 Latines
understand by Crimina Laesae Majestatis, and consist in designe,
or act, contrary to a Fundamentall Law.

Bribery And False Testimony
Likewise those Crimes, which render Judgements of no effect,
are greater Crimes, than Injuries done to one, or a few persons;
as to receive mony to give False judgement, or testimony,
is a greater Crime, than otherwise to deceive a man of the like,
or a greater summe; because not onely he has wrong, that falls
by such judgements; but all Judgements are rendered uselesse,
and occasion ministred to force, and private revenges.

Depeculation
Also Robbery, and Depeculation of the Publique treasure, or Revenues,
is a greater Crime, than the robbing, or defrauding of a Private man;
because to robbe the publique, is to robbe many at once.

Counterfeiting Authority
Also the Counterfeit usurpation of publique Ministery, the Counterfeiting
of publique Seales, or publique Coine, than counterfeiting of
a private mans person, or his seale; because the fraud thereof,
extendeth to the dammage of many.

Crimes Against Private Men Compared
Of facts against the Law, done to private men, the greater Crime,
is that, where the dammage in the common opinion of men, is
most sensible. And therefore

To kill against the Law, is a greater Crime, that any other injury,
life preserved.

And to kill with Torment, greater, than simply to kill.

And Mutilation of a limbe, greater, than the spoyling a man
of his goods.

And the spoyling a man of his goods, by Terrour 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 lesse sensible of the same offence. But the Law regardeth
not the particular, but the generall inclination of mankind.

And therefore the offence men take, from contumely, in words,
or gesture, when they produce no other harme, than the present griefe
of him that is reproached, hath been neglected in the Lawes of
the Greeks, Romans, and other both antient, and moderne Common-wealths;
supposing the true cause of such griefe to consist, not in the
contumely, (which takes no hold upon men conscious of their own Vertue,)
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 ones Parent, is a greater Crime,
than to kill another: for the Parent ought to have the honour
of a Soveraign, (though he have surrendred his Power to the Civill Law,)
because he had it originally by Nature. And to Robbe a poore man,
is a greater Crime, than to robbe a rich man; because 'tis to
the poore a more sensible dammage.

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.

Publique Crimes What
Lastly, because in almost all Crimes there is an Injury done,
not onely to some Private man, but also to the Common-wealth;
the same Crime, when the accusation is in the name of the Common-wealth,
is called Publique Crime; and when in the name of a Private man,
a Private Crime; And the Pleas according thereunto called Publique,
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 Soveraign, the plea is a Publique plea.

CHAPTER XXVIII

OF PUNISHMENTS, AND REWARDS

The Definition Of Punishment
"A PUNISHMENT, is an Evill inflicted by publique 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."

Right To Punish Whence Derived
Before I inferre any thing 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
Common-wealth, every man giveth away the right of defending another;
but not of defending himselfe. Also he obligeth himselfe,
to assist him that hath the Soveraignty, in the Punishing of another;
but of himselfe not. But to covenant to assist the Soveraign,
in doing hurt to another, unlesse he that so covenanteth have
a right to doe it himselfe, is not to give him a Right to Punish.
It is manifest therefore that the Right which the Common-wealth
(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 shewed formerly, that before the Institution
of Common-wealth, every man had a right to every thing, 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 Common-wealth. For the Subjects did not give the Soveraign
that right; but onely in laying down theirs, strengthned 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 onely;
and (excepting the limits set him by naturall Law) as entire,
as in the condition of meer Nature, and of warre of every one
against his neighbour.

Private Injuries, And Revenges No Punishments
From the definition of Punishment, I inferre, First, that neither
private revenges, nor injuries of private men, can properly
be stiled Punishment; because they proceed not from publique Authority.

Nor Denyall Of Preferment
Secondly, that to be neglected, and unpreferred by the publique favour,
is not a Punishment; because no new evill is thereby on any
man Inflicted; he is onely left in the estate he was in before.

Nor Pain Inflicted Without Publique Hearing
Thirdly, that the evill inflicted by publique Authority, without
precedent publique condemnation, is not to be stiled 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 publique Authority,
to be a transgression of the Law.

Nor Pain Inflicted By Usurped Power
Fourthly, that the evill inflicted by usurped power, and Judges
without Authority from the Soveraign, 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 publique Authority.

Nor Pain Inflicted Without Respect To The Future Good
Fifthly, that all evill which is inflicted without intention,
or possibility of disposing the Delinquent, or (by his example)
other men, to obey the Lawes, is not Punishment; but an act of
hostility; because without such an end, no hurt done is contained
under that name.

Naturall Evill Consequences, No Punishments
Sixthly, whereas to certain actions, there be annexed by Nature,
divers hurtfull consequences; as when a man in assaulting another,
is himselfe slain, or wounded; or when he falleth into sicknesse
by the doing of some unlawfull 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 contaned in the
name of Punishment in respect of men, because it is not inflicted
by the Authority of man.

Hurt Inflicted, If Lesse Than The Benefit
Of Transgressing, Is Not Punishment
Seventhly, If the harm inflicted be lesse 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 lesse that the benefit
of the transgression) it attaineth not, but worketh a contrary effect.

Where The Punishment Is Annexed To The Law,
A Greater Hurt Is Not Punishment, But Hostility
Eighthly, If a Punishment be determined and prescribed in the Law
it selfe, and after the crime committed, there be a greater
Punishment inflicted, the excesse is not Punishment, but an
act of hostility. For seeing the aym of Punishment is not a revenge,
but terrour; and the terrour of a great Punishment unknown,
is taken away by the declaration of a lesse, 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.