Books: Leviathan

T >> Thomas Hobbes >> Leviathan

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Hurt Inflicted For A Fact Done
Before The Law, No Punishment
Ninthly, Harme inflicted for a Fact done before there was a Law
that forbad 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 a transgression of the Law;
Therefore Harme inflicted before the Law made, is not Punishment,
but an act of Hostility.

The Representative Of The Common-wealth Unpunishable
Tenthly, Hurt inflicted on the Representative of the Common-wealth,
is not Punishment, but an act of Hostility: Because it is of
the nature of Punishment, to be inflicted by publique Authority,
which is the Authority only of the Representative it self.

Hurt To Revolted Subjects Is Done By
Right Of War, Not By Way Of Punishment
Lastly, Harme inflicted upon one that is a declared enemy,
fals not under the name of Punishment: Because seeing they were
either never subject to the Law, and therefore cannot transgresse it;
or having been subject to it, and professing to be no longer so,
by consequence deny they can transgresse it, all the Harmes that
can be done them, must be taken as acts of Hostility. But in declared
Hostility, all infliction of evill is lawfull. From whence it followeth,
that if a subject shall by fact, or word, wittingly, and deliberatly
deny the authority of the Representative of the Common-wealth,
(whatsoever penalty hath been formerly ordained for Treason,)
he may lawfully be made to suffer whatsoever the Representative will:
For in denying subjection, he denyes such Punishment as by the Law hath
been ordained; and therefore suffers as an enemy of the Common-wealth;
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 act Subjects,
deliberately revolting, deny the Soveraign Power.

The first, and most generall distribution of Punishments, is into
Divine, and Humane. Of the former I shall have occasion, to speak,
in a more convenient place hereafter.

Humane, are those Punishments that be inflicted by the Commandement
of Man; and are either Corporall, or Pecuniary, or Ignominy,
or Imprisonment, or Exile, or mixt of these.

Punishments Corporall
Corporall 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.

Capitall
And of these, some be Capitall, some Lesse than Capitall.
Capitall, is the Infliction of Death; and that either simply,
or with torment. Lesse than Capitall, are Stripes, Wounds, Chains,
and any other corporall Paine, not in its own nature mortall.
For if upon the Infliction of a Punishment death follow not in
the Intention of the Inflicter, the Punishment is not be bee
esteemed Capitall, though the harme prove mortall 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 Summe of Mony, but also of Lands, or any other
goods which are usually bought and sold for mony. And in case
the Law, that ordaineth such a punishment, be made with design
to gather mony, from such as shall transgresse the same, it is not
properly a Punishment, but the Price of priviledge, and exemption
from the Law, which doth not absolutely forbid the fact, but only
to those that are not able to pay the mony: except where the Law
is Naturall, 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 vaine,
the payment of the mulct, is not the price of a dispensation to sweare,
but the Punishment of the transgression of a Law undispensable.
In like manner if the Law impose a Summe of Mony to be payd,
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 Evill, as is made Dishonorable;
or the deprivation of such Good, as is made Honourable by
the Common-wealth. For there be some things Honorable by Nature;
as the effects of Courage, Magnanimity, Strength, Wisdome,
and other abilities of body and mind: Others made Honorable
by the Common-wealth; as Badges, Titles, Offices, or any other
singular marke of the Soveraigns favour. The former, (though they
may faile by nature, or accident,) cannot be taken away by a Law;
and therefore the losse of them is not Punishment. But the later,
may be taken away by the publique authority that made them Honorable,
and are properly Punishments: Such are degrading men condemned,
of their Badges, Titles, and Offices; or declaring them uncapable
of the like in time to come.

Imprisonment
Imprisonment, is when a man is by publique 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 paine on a man condemned. The former is not Punishment;
because no man is supposed to be Punisht, 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 Later is Punishment,
because Evill, and inflicted by publique 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 externall obstacle, be it a House, which is called
by the generall name of a Prison; or an Iland, as when men are
said to be confined to it; or a place where men are set to worke,
as in old time men have been condemned to Quarries, and in these
times to Gallies; or be it a Chaine, or any other such impediment.

Exile
Exile, (Banishment) is when a man is for a crime, condemned
to depart out of the dominion of the Common-wealth, or out of
a certaine 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 publique commandement to avoid Punishment by flight.
And Cicero sayes, there was never any such Punishment ordained
in the City of Rome; but cals it a refuge of men in danger.
For if a man banished, be neverthelesse permitted to enjoy his Goods,
and the Revenue of his Lands, the meer change of ayr is no punishment;
nor does it tend to that benefit of the Common-wealth, for which
all Punishments are ordained, (that is to say, to the forming
of mens wils to the observation of the Law;) but many times to
the dammage of the Common-wealth. For a Banished man, is a lawfull
enemy of the Common-wealth that banished him; as being no more
a Member of the same. But if he be withall deprived of his Lands,
or Goods, then the Punishment lyeth not in the Exile, but is to be
reckoned amongst Punishments Pecuniary.

The Punishment Of Innocent Subjects
Is Contrary To The Law Of Nature
All Punishments of Innocent subjects, be they great or little,
are against the Law of Nature; For Punishment is only of
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
any thing but some future good: For there can arrive no good to the
Common-wealth, by Punishing the Innocent. Secondly, of that, which
forbiddeth Ingratitude: For seeing all Soveraign 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 rendring of Evill for Good.
And thirdly, of the Law that commandeth Equity; that is to say,
an equall distribution of Justice; which in Punishing the Innocent
is not observed.

But The Harme Done To Innocents In War, Not So
But the Infliction of what evill soever, on an Innocent man,
that is not a Subject, if it be for the benefit of the Common-wealth,
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 Common-wealth judgeth capable to
do them hurt, it is lawfull by the originall Right of Nature
to make warre; wherein the Sword Judgeth not, nor doth the Victor
make distinction of Nocent and Innocent, as to the time past;
nor has other respect of mercy, than as it conduceth to the good
of his own People. And upon this ground it is, that also in Subjects,
who deliberatly deny the Authority of the Common-wealth established,
the vengeance is lawfully extended, not onely to the Fathers,
but also to the third and fourth generation not yet in being,
and consequently innocent of the fact, for which they are afflicted:
because the nature of this offence, consisteth in the renouncing
of subjection; which is a relapse into the condition of warre,
commonly called Rebellion; and they that so offend, suffer not
as Subjects, but as Enemies. For Rebellion, is but warre renewed.

Reward, Is Either Salary, Or Grace
REWARD, is either of Gift, or by Contract. When by Contract,
it is called Salary, and Wages; which is benefit due for service
performed, or promised. When of Gift, it is benefit proceeding
from the Grace of them that bestow it, to encourage, or enable
men to do them service. And therefore when the Soveraign of
a Common-wealth appointeth a Salary to any publique Office,
he that receiveth it, is bound in Justice to performe his office;
otherwise, he is bound onely in honour, to acknowledgement,
and an endeavour of requitall. For though men have no lawfull remedy,
when they be commanded to quit their private businesse, to serve
the publique, without Reward, or Salary; yet they are not bound thereto,
by the Law of Nature, nor by the institution of the Common-wealth,
unlesse the service cannot otherwise be done; because it is supposed
the Soveraign may make use of all their means, insomuch as the most
common Souldier, may demand the wages of his warrefare, as a debt.

Benefits Bestowed For Fear, Are Not Rewards
The benefits which a Soveraign bestoweth on a Subject, for fear
of some power, and ability he hath to do hurt to the Common-wealth,
are not properly Rewards; for they are not Salaryes; because
there is in this case no contract supposed, every man being obliged
already not to do the Common-wealth disservice: nor are they Graces;
because they be extorted by feare, which ought not to be incident
to the Soveraign Power: but are rather Sacrifices, which the Soveraign
(considered in his naturall person, and not in the person of
the Common-wealth) makes, for the appeasing the discontent of him he
thinks more potent than himselfe; and encourage not to obedience, but on
the contrary, to the continuance, and increasing of further extortion.

Salaries Certain And Casuall
And whereas some Salaries are certain, and proceed from the
publique Treasure; and others uncertain, and casuall, proceeding
from the execution of the Office for which the Salary is ordained;
the later is in some cases hurtfull to the Common-wealth;
as in the case of Judicature. For where the benefit of the Judges,
and Ministers of a Court of Justice, ariseth for the multitude of
Causes that are brought to their cognisance, there must needs follow
two Inconveniences: One, is the nourishing of sutes; for the more sutes,
the greater benefit: and another that depends on that, which is
contention about Jurisdiction; each Court drawing to it selfe,
as many Causes as it can. But in offices of Execution there are
not those Inconveniences; because their employment cannot be
encreased by any endeavour of their own. And thus much shall
suffice for the nature of Punishment, and Reward; which are,
as it were, the Nerves and Tendons, that move the limbes and
joynts of a Common-wealth.

Hitherto I have set forth the nature of Man, (whose Pride and
other Passions have compelled him to submit himselfe to Government;)
together with the great power of his Governour, whom I compared
to Leviathan, taking that comparison out of the two last verses
of the one and fortieth of Job; where God having set forth
the great power of Leviathan, called him King of the Proud.
"There is nothing," saith he, "on earth, to be compared with him.
He is made so as not be afraid. Hee seeth every high thing below him;
and is King of all the children of pride." But because he is mortall,
and subject to decay, as all other Earthly creatures are; and because
there is that in heaven, (though not on earth) that he should stand
in fear of, and whose Lawes he ought to obey; I shall in the next
following Chapters speak of his Diseases, and the causes of his
Mortality; and of what Lawes of Nature he is bound to obey.

CHAPTER XXIX

OF THOSE THINGS THAT WEAKEN, OR TEND TO THE DISSOLUTION OF A COMMON-WEALTH

Dissolution Of Common-wealths Proceedeth
From Their Imperfect Institution
Though nothing can be immortall, which mortals make; yet, if men had
the use of reason they pretend to, their Common-wealths might be secured,
at least, from perishing by internall diseases. For by the nature
of their Institution, they are designed to live, as long as Man-kind,
or as the Lawes of Nature, or as Justice it selfe, which gives them life.
Therefore when they come to be dissolved, not by externall violence,
but intestine disorder, the fault is not in men, as they are the Matter;
but as they are the Makers, and orderers of them. For men, as they
become at last weary of irregular justling, and hewing one another,
and desire with all their hearts, to conforme themselves into one firme
and lasting edifice; so for want, both of the art of making fit Laws,
to square their actions by, and also of humility, and patience,
to suffer the rude and combersome points of their present greatnesse
to be taken off, they cannot without the help of a very able Architect,
be compiled, into any other than a crasie building, such as hardly
lasting out their own time, must assuredly fall upon the heads
of their posterity.

Amongst the Infirmities therefore of a Common-wealth, I will reckon
in the first place, those that arise from an Imperfect Institution,
and resemble the diseases of a naturall body, which proceed from
a Defectuous Procreation.

Want Of Absolute Power
Of which, this is one, "That a man to obtain a Kingdome, is sometimes
content with lesse Power, than to the Peace, and defence of the
Common-wealth is necessarily required." From whence it commeth to passe,
that when the exercise of the Power layd by, is for the publique safety
to be resumed, it hath the resemblance of as unjust act; which disposeth
great numbers of men (when occasion is presented) to rebell;
In the same manner as the bodies of children, gotten by diseased parents,
are subject either to untimely death, or to purge the ill quality,
derived from their vicious conception, by breaking out into
biles and scabbs. And when Kings deny themselves some such
necessary Power, it is not alwayes (though sometimes) out of
ignorance of what is necessary to the office they undertake;
but many times out of a hope to recover the same again at their pleasure:
Wherein they reason not well; because such as will hold them
to their promises, shall be maintained against them by forraign
Common-wealths; who in order to the good of their own Subjects
let slip few occasions to Weaken the estate of their Neighbours.
So was Thomas Beckett Archbishop of Canterbury, supported against
Henry the Second, by the Pope; the subjection of Ecclesiastiques
to the Common-wealth, having been dispensed with by William
the Conqueror at his reception, when he took an Oath, not to
infringe the liberty of the Church. And so were the Barons,
whose power was by William Rufus (to have their help in transferring
the Succession from his Elder brother, to himselfe,) encreased
to a degree, inconsistent with the Soveraign Power, maintained in
their Rebellion against King John, by the French. Nor does this happen
in Monarchy onely. For whereas the stile of the antient Roman
Common-wealth, was, The Senate, and People of Rome; neither Senate,
nor People pretended to the whole Power; which first caused
the seditions, of Tiberius Gracchus, Caius Gracchus, Lucius Saturnius,
and others; and afterwards the warres between the Senate and the People,
under Marius and Sylla; and again under Pompey and Caesar,
to the Extinction of their Democraty, and the setting up of Monarchy.

The people of Athens bound themselves but from one onely Action;
which was, that no man on pain of death should propound the
renewing of the warre for the Island of Salamis; And yet thereby,
if Solon had not caused to be given out he was mad, and afterwards
in gesture and habit of a mad-man, and in verse, propounded it
to the People that flocked about him, they had had an enemy
perpetually in readinesse, even at the gates of their Citie;
such dammage, or shifts, are all Common-wealths forced to,
that have their Power never so little limited.

Private Judgement Of Good and Evill
In the second place, I observe the Diseases of a Common-wealth,
that proceed from the poyson of seditious doctrines; whereof one is,
"That every private man is Judge of Good and Evill actions."
This is true in the condition of meer Nature, where there are no
Civill Lawes; and also under Civill Government, in such cases as are not
determined by the Law. But otherwise, it is manifest, that the measure
of Good and Evill actions, is the Civill Law; and the Judge the
Legislator, who is alwayes Representative of the Common-wealth.
From this false doctrine, men are disposed to debate with themselves,
and dispute the commands of the Common-wealth; and afterwards to obey,
or disobey them, as in their private judgements they shall think fit.
Whereby the Common-wealth is distracted and Weakened.

Erroneous Conscience
Another doctrine repugnant to Civill Society, is, that "Whatsoever a man
does against his Conscience, is Sinne;" and it dependeth on
the presumption of making himself judge of Good and Evill.
For a mans Conscience, and his Judgement is the same thing;
and as the Judgement, so also the Conscience may be erroneous.
Therefore, though he that is subject to no Civill Law, sinneth in all
he does against his Conscience, because he has no other rule
to follow but his own reason; yet it is not so with him that lives
in a Common-wealth; because the Law is the publique Conscience,
by which he hath already undertaken to be guided. Otherwise in
such diversity, as there is of private Consciences, which are but
private opinions, the Common-wealth must needs be distracted,
and no man dare to obey the Soveraign Power, farther than it
shall seem good in his own eyes.

Pretence Of Inspiration
It hath been also commonly taught, "That Faith and Sanctity,
are not to be attained by Study and Reason, but by supernaturall
Inspiration, or Infusion," which granted, I see not why any man
should render a reason of his Faith; or why every Christian should not
be also a Prophet; or why any man should take the Law of his Country,
rather than his own Inspiration, for the rule of his action.
And thus wee fall again into the fault of taking upon us to
Judge of Good and Evill; or to make Judges of it, such private men
as pretend to be supernaturally Inspired, to the Dissolution of
all Civill Government. Faith comes by hearing, and hearing by
those accidents, which guide us into the presence of them that
speak to us; which accidents are all contrived by God Almighty;
and yet are not supernaturall, but onely, for the great number
of them that concurre to every effect, unobservable. Faith, and
Sanctity, are indeed not very frequent; but yet they are not Miracles,
but brought to passe by education, discipline, correction, and other
naturall wayes, by which God worketh them in his elect, as such time
as he thinketh fit. And these three opinions, pernicious to Peace
and Government, have in this part of the world, proceeded chiefly
from the tongues, and pens of unlearned Divines; who joyning the
words of Holy Scripture together, otherwise than is agreeable to reason,
do what they can, to make men think, that Sanctity and Naturall Reason,
cannot stand together.

Subjecting The Soveraign Power To Civill Lawes
A fourth opinion, repugnant to the nature of a Common-wealth, is this,
"That he that hath the Soveraign Power, is subject to the Civill Lawes."
It is true, that Soveraigns are all subjects to the Lawes of Nature;
because such lawes be Divine, and cannot by any man, or Common-wealth
be abrogated. But to those Lawes which the Soveraign himselfe,
that is, which the Common-wealth maketh, he is not subject.
For to be subject to Lawes, is to be subject to the Common-wealth,
that is to the Soveraign Representative, that is to himselfe;
which is not subjection, but freedome from the Lawes. Which errour,
because it setteth the Lawes above the Soveraign, setteth also a
Judge above him, and a Power to punish him; which is to make
a new Soveraign; and again for the same reason a third, to punish
the second; and so continually without end, to the Confusion,
and Dissolution of the Common-wealth.

Attributing Of Absolute Propriety To The Subjects
A Fifth doctrine, that tendeth to the Dissolution of a Common-wealth, is,
"That every private man has an absolute Propriety in his Goods; such,
as excludeth the Right of the Soveraign." Every man has indeed
a Propriety that excludes the Right of every other Subject:
And he has it onely from the Soveraign Power; without the protection
whereof, every other man should have equall Right to the same.
But if the Right of the Soveraign also be excluded, he cannot
performe the office they have put him into; which is, to defend them
both from forraign enemies, and from the injuries of one another;
and consequently there is no longer a Common-wealth.

And if the Propriety of Subjects, exclude not the Right of
the Soveraign Representative to their Goods; much lesse to
their offices of Judicature, or Execution, in which they
Represent the Soveraign himselfe.

Dividing Of The Soveraign Power
There is a Sixth doctrine, plainly, and directly against the
essence of a Common-wealth; and 'tis this, "That the Soveraign
Power may be divided." For what is it to divide the Power of
a Common-wealth, but to Dissolve it; for Powers divided mutually
destroy each other. And for these doctrines, men are chiefly
beholding to some of those, that making profession of the Lawes,
endeavour to make them depend upon their own learning, and not
upon the Legislative Power.

Imitation Of Neighbour Nations
And as False Doctrine, so also often-times the Example of different
Government in a neighbouring Nation, disposeth men to alteration
of the forme already setled. So the people of the Jewes were
stirred up to reject God, and to call upon the Prophet Samuel,
for a King after the manner of the Nations; So also the lesser
Cities of Greece, were continually disturbed, with seditions
of the Aristocraticall, and Democraticall factions; one part of
almost every Common-wealth, desiring to imitate the Lacedaemonians;
the other, the Athenians. And I doubt not, but many men, have been
contented to see the late troubles in England, out of an imitation
of the Low Countries; supposing there needed no more to grow rich,
than to change, as they had done, the forme of their Government.
For the constitution of mans nature, is of it selfe subject to
desire novelty: When therefore they are provoked to the same,
by the neighbourhood also of those that have been enriched by it,
it is almost impossible for them, not to be content with those
that solicite them to change; and love the first beginnings,
though they be grieved with the continuance of disorder; like hot blouds,
that having gotten the itch, tear themselves with their own nayles,
till they can endure the smart no longer.

Imitation Of The Greeks, And Romans
And as to Rebellion in particular against Monarchy; one of the most
frequent causes of it, is the Reading of the books of Policy,
and Histories of the antient Greeks, and Romans; from which,
young men, and all others that are unprovided of the Antidote
of solid Reason, receiving a strong, and delightfull impression,
of the great exploits of warre, atchieved by the Conductors of
their Armies, receive withall a pleasing Idea, of all they have
done besides; and imagine their great prosperity, not to have
proceeded from the aemulation of particular men, but from the
vertue of their popular form of government: Not considering the
frequent Seditions, and Civill Warres, produced by the imperfection
of their Policy. From the reading, I say, of such books,
men have undertaken to kill their Kings, because the Greek and
Latine writers, in their books, and discourses of Policy, make
it lawfull, and laudable, for any man so to do; provided before he do it,
he call him Tyrant. For they say not Regicide, that is, killing of
a King, but Tyrannicide, that is, killing of a Tyrant is lawfull.
From the same books, they that live under a Monarch conceive an opinion,
that the Subjects in a Popular Common-wealth enjoy Liberty; but that
in a Monarchy they are all Slaves. I say, they that live under a
Monarchy conceive such an opinion; not they that live under
a Popular Government; for they find no such matter. In summe,
I cannot imagine, how anything can be more prejudiciall to a Monarchy,
than the allowing of such books to be publikely read, without present
applying such correctives of discreet Masters, as are fit to take away
their Venime; Which Venime I will not doubt to compare to the biting
of a mad Dogge, which is a disease the Physicians call Hydrophobia,
or Fear Of Water. For as he that is so bitten, has a continuall
torment of thirst, and yet abhorreth water; and is in such an estate,
as if the poyson endeavoured to convert him into a Dogge: So when a
Monarchy is once bitten to the quick, by those Democraticall writers,
that continually snarle at that estate; it wanteth nothing more
than a strong Monarch, which neverthelesse out of a certain
Tyrannophobia, or feare of being strongly governed, when they have him,
they abhorre.