PART II.

27.

Public crimes what.

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.

CHAPTER XXVIII.

OF PUNISHMENTS AND REWARDS.

PART II.

28.

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

of punishment.

whence derived

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 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

28.

PART II. 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 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 & revenges no punishments.

Nor denial of preferment;

Nor pain inflicted without

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 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 authority, to be a transgression of the law.

Nor pain inflicted by

Fourthly, that the evil inflicted by usurped usurped power; 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

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intention, or possibility of disposing the delinquent, PART II. 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.

flicted without

consequences

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.

if less than the

gressing, is not

Seventhly, if the harm inflicted be less than the Hurt inflicted, benefit, or contentment that naturally followeth benefit oftransthe 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.

punishment is

law, a greater

Eighthly, if a punishment be determined and Where the 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

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PART II. 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 punish

Hurt inflicted

for a fact done

no punishment,

ment.

Ninthly, harm inflicted for a fact done before before the law, 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 a transgression of the law; therefore harm inflicted before the law made, is not punishment, but an act of hostility.

The represen

tative of the

Tenthly, hurt inflicted on the representative of commonwealth the commonwealth, is not punishment, but an act unpunishable. 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 revolted subjects

of war, not by

ment.

Lastly, harm inflicted upon one that is a deis done by right clared enemy, falls not under the name of punishway 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