No More Learning

And therefore Rash, And Unevident Inferences;
(such as are fetched onely from Examples, or authority of Books, and are
not arguments of what is good, or evill, but witnesses of fact, or
of opinion,) Obscure, Confused, And Ambiguous Expressions, Also All
Metaphoricall Speeches, Tending To The Stirring Up Of Passion, (because
such reasoning, and such expressions, are usefull onely to deceive, or
to lead him we Counsell towards other ends than his own) Are Repugnant
To The Office Of A Counsellour.

Thirdly, Because the Ability of Counselling proceedeth from Experience,
and long study; and no man is presumed to have experience in all those
things that to the Administration of a great Common-wealth are necessary
to be known, No Man Is Presumed To Be A Good Counsellour, But In Such
Businesse, As He Hath Not Onely Been Much Versed In, But Hath Also
Much Meditated On, And Considered. For seeing the businesse of a
Common-wealth is this, to preserve the people at home, and defend them
against forraign Invasion, we shall find, it requires great knowledge
of the disposition of Man-kind, of the Rights of Government, and of the
nature of Equity, Law, Justice, and Honour, not to be attained without
study; And of the Strength, Commodities, Places, both of their own
Country, and their Neighbours; as also of the inclinations, and designes
of all Nations that may any way annoy them. And this is not attained to,
without much experience. Of which things, not onely the whole summe, but
every one of the particulars requires the age, and observation of a man
in years, and of more than ordinary study. The wit required for Counsel,
as I have said before is Judgement. And the differences of men in that
point come from different education, of some to one kind of study, or
businesse, and of others to another. When for the doing of any thing,
there be Infallible rules, (as in Engines, and Edifices, the rules of
Geometry,) all the experience of the world cannot equall his Counsell,
that has learnt, or found out the Rule. And when there is no such Rule,
he that hath most experience in that particular kind of businesse, has
therein the best Judgement, and is the best Counsellour.

Fourthly, to be able to give Counsell to a Common-wealth, in a businesse
that hath reference to another Common-wealth, It Is Necessary To Be
Acquainted With The Intelligences, And Letters That Come From Thence,
And With All The Records Of Treaties, And Other Transactions Of State
Between Them; which none can doe, but such as the Representative
shall think fit. By which we may see, that they who are not called to
Counsell, can have no good Counsell in such cases to obtrude.

Fifthly, Supposing the number of Counsellors equall, a man is better
Counselled by hearing them apart, then in an Assembly; and that for many
causes. First, in hearing them apart, you have the advice of every man;
but in an Assembly may of them deliver their advise with I, or No, or
with their hands, or feet, not moved by their own sense, but by the
eloquence of another, or for feare of displeasing some that have spoken,
or the whole Assembly, by contradiction; or for feare of appearing
duller in apprehension, than those that have applauded the contrary
opinion. Secondly, in an Assembly of many, there cannot choose but be
some whose interests are contrary to that of the Publique; and these
their Interests make passionate, and Passion eloquent, and Eloquence
drawes others into the same advice. For the Passions of men, which
asunder are moderate, as the heat of one brand; in Assembly are like
many brands, that enflame one another, (especially when they blow one
another with Orations) to the setting of the Common-wealth on fire,
under pretence of Counselling it. Thirdly, in hearing every man apart,
one may examine (when there is need) the truth, or probability of
his reasons, and of the grounds of the advise he gives, by frequent
interruptions, and objections; which cannot be done in an Assembly,
where (in every difficult question) a man is rather astonied, and dazled
with the variety of discourse upon it, than informed of the course he
ought to take. Besides, there cannot be an Assembly of many, called
together for advice, wherein there be not some, that have the ambition
to be thought eloquent, and also learned in the Politiques; and give not
their advice with care of the businesse propounded, but of the applause
of their motly orations, made of the divers colored threds, or shreds of
Authors; which is an Impertinence at least, that takes away the time
of serious Consultation, and in the secret way of Counselling apart, is
easily avoided. Fourthly, in Deliberations that ought to be kept secret,
(whereof there be many occasions in Publique Businesse,) the Counsells
of many, and especially in Assemblies, are dangerous; And therefore
great Assemblies are necessitated to commit such affaires to lesser
numbers, and of such persons as are most versed, and in whose fidelity
they have most confidence.

To conclude, who is there that so far approves the taking of Counsell
from a great Assembly of Counsellours, that wisheth for, or would accept
of their pains, when there is a question of marrying his Children,
disposing of his Lands, governing his Household, or managing his
private Estate, especially if there be amongst them such as wish not
his prosperity? A man that doth his businesse by the help of many and
prudent Counsellours, with every one consulting apart in his proper
element, does it best, as he that useth able Seconds at Tennis play,
placed in their proper stations. He does next best, that useth his own
Judgement only; as he that has no Second at all. But he that is carried
up and down to his businesse in a framed Counsell, which cannot move
but by the plurality of consenting opinions, the execution whereof is
commonly (out of envy, or interest) retarded by the part dissenting,
does it worst of all, and like one that is carried to the ball, though
by good Players, yet in a Wheele-barrough, or other frame, heavy of it
self, and retarded also by the inconcurrent judgements, and endeavours
of them that drive it; and so much the more, as they be more that set
their hands to it; and most of all, when there is one, or more amongst
them, that desire to have him lose. And though it be true, that many eys
see more then one; yet it is not to be understood of many Counsellours;
but then only, when the finall Resolution is in one man. Otherwise,
because many eyes see the same thing in divers lines, and are apt to
look asquint towards their private benefit; they that desire not to
misse their marke, though they look about with two eyes, yet they never
ayme but with one; And therefore no great Popular Common-wealth was
ever kept up; but either by a forraign Enemy that united them; or by
the reputation of some one eminent Man amongst them; or by the secret
Counsell of a few; or by the mutuall feare of equall factions; and
not by the open Consultations of the Assembly. And as for very little
Common-wealths, be they Popular, or Monarchicall, there is no humane
wisdome can uphold them, longer then the Jealousy lasteth of their
potent Neighbours.



CHAPTER XXVI. OF CIVILL LAWES




Civill Law what

By CIVILL LAWES, I understand the Lawes, that men are therefore bound to
observe, because they are Members, not of this, or that Common-wealth
in particular, but of a Common-wealth. For the knowledge of particular
Lawes belongeth to them, that professe the study of the Lawes of their
severall Countries; but the knowledge of Civill Law in generall, to any
man. The antient Law of Rome was called their Civil Law, from the word
Civitas, which signifies a Common-wealth; And those Countries, which
having been under the Roman Empire, and governed by that Law, retaine
still such part thereof as they think fit, call that part the Civill
Law, to distinguish it from the rest of their own Civill Lawes. But that
is not it I intend to speak of here; my designe being not to shew what
is Law here, and there; but what is Law; as Plato, Aristotle, Cicero,
and divers others have done, without taking upon them the profession of
the study of the Law.

And first it manifest, that Law in generall, is not Counsell, but
Command; nor a Command of any man to any man; but only of him, whose
Command is addressed to one formerly obliged to obey him. And as for
Civill Law, it addeth only the name of the person Commanding, which is
Persona Civitatis, the Person of the Common-wealth.

Which considered, I define Civill Law in this Manner. "CIVILL LAW, Is to
every Subject, those Rules, which the Common-wealth hath Commanded him,
by Word, Writing, or other sufficient Sign of the Will, to make use
of, for the Distinction of Right, and Wrong; that is to say, of what is
contrary, and what is not contrary to the Rule. "

In which definition, there is nothing that is not at first sight
evident. For every man seeth, that some Lawes are addressed to all the
Subjects in generall; some to particular Provinces; some to particular
Vocations; and some to particular Men; and are therefore Lawes, to every
of those to whom the Command is directed; and to none else. As also,
that Lawes are the Rules of Just, and Unjust; nothing being reputed
Unjust, that is not contrary to some Law. Likewise, that none can
make Lawes but the Common-wealth; because our Subjection is to the
Common-wealth only: and that Commands, are to be signified by sufficient
Signs; because a man knows not otherwise how to obey them. And
therefore, whatsoever can from this definition by necessary consequence
be deduced, ought to be acknowledged for truth. Now I deduce from it
this that followeth.




The Soveraign Is Legislator

1. The Legislator in all Common-wealths, is only the Soveraign, be he
one Man, as in a Monarchy, or one Assembly of men, as in a Democracy,
or Aristocracy. For the Legislator, is he that maketh the Law. And the
Common-wealth only, praescribes, and commandeth the observation of those
rules, which we call Law: Therefore the Common-wealth is the Legislator.
But the Common-wealth is no Person, nor has capacity to doe any thing,
but by the Representative, (that is, the Soveraign;) and therefore the
Soveraign is the sole Legislator. For the same reason, none can abrogate
a Law made, but the Soveraign; because a Law is not abrogated, but by
another Law, that forbiddeth it to be put in execution.




And Not Subject To Civill Law

2. The Soveraign of a Common-wealth, be it an Assembly, or one Man, is
not subject to the Civill Lawes. For having power to make, and repeale
Lawes, he may when he pleaseth, free himselfe from that subjection,
by repealing those Lawes that trouble him, and making of new; and
consequently he was free before. For he is free, that can be free when
he will: Nor is it possible for any person to be bound to himselfe;
because he that can bind, can release; and therefore he that is bound to
himselfe onely, is not bound.




Use, A Law Not By Vertue Of Time, But Of The Soveraigns Consent

3. When long Use obtaineth the authority of a Law, it is not the
Length of Time that maketh the Authority, but the Will of the Soveraign
signified by his silence, (for Silence is sometimes an argument of
Consent;) and it is no longer Law, then the Soveraign shall be silent
therein. And therefore if the Soveraign shall have a question of Right
grounded, not upon his present Will, but upon the Lawes formerly
made; the Length of Time shal bring no prejudice to his Right; but the
question shal be judged by Equity. For many unjust Actions, and unjust
Sentences, go uncontrolled a longer time, than any man can remember.
And our Lawyers account no Customes Law, but such as are reasonable, and
that evill Customes are to be abolished; But the Judgement of what is
reasonable, and of what is to be abolished, belongeth to him that maketh
the Law, which is the Soveraign Assembly, or Monarch.




The Law Of Nature, And The Civill Law Contain Each Other

4. The Law of Nature, and the Civill Law, contain each other, and are
of equall extent. For the Lawes of Nature, which consist in Equity,
Justice, Gratitude, and other morall Vertues on these depending, in the
condition of meer Nature (as I have said before in the end of the 15th
Chapter,) are not properly Lawes, but qualities that dispose men to
peace, and to obedience. When a Common-wealth is once settled, then are
they actually Lawes, and not before; as being then the commands of the
Common-wealth; and therefore also Civill Lawes: for it is the Soveraign
Power that obliges men to obey them. For in the differences of private
men, to declare, what is Equity, what is Justice, and what is morall
Vertue, and to make them binding, there is need of the Ordinances of
Soveraign Power, and Punishments to be ordained for such as shall break
them; which Ordinances are therefore part of the Civill Law. The Law of
Nature therefore is a part of the Civill Law in all Common-wealths of
the world. Reciprocally also, the Civill Law is a part of the Dictates
of Nature. For Justice, that is to say, Performance of Covenant, and
giving to every man his own, is a Dictate of the Law of Nature. But
every subject in a Common-wealth, hath covenanted to obey the Civill
Law, (either one with another, as when they assemble to make a common
Representative, or with the Representative it selfe one by one, when
subdued by the Sword they promise obedience, that they may receive
life;) And therefore Obedience to the Civill Law is part also of the
Law of Nature. Civill, and Naturall Law are not different kinds, but
different parts of Law; whereof one part being written, is called
Civill, the other unwritten, Naturall. But the Right of Nature, that
is, the naturall Liberty of man, may by the Civill Law be abridged,
and restrained: nay, the end of making Lawes, is no other, but such
Restraint; without the which there cannot possibly be any Peace. And Law
was brought into the world for nothing else, but to limit the naturall
liberty of particular men, in such manner, as they might not hurt, but
assist one another, and joyn together against a common Enemy.




Provinciall Lawes Are Not Made By Custome, But By The Soveraign Power

5. If the Soveraign of one Common-wealth, subdue a people that have
lived under other written Lawes, and afterwards govern them by the
same Lawes, by which they were governed before; yet those Lawes are the
Civill Lawes of the Victor, and not of the Vanquished Common-wealth, For
the Legislator is he, not by whose authority the Lawes were first made,
but by whose authority they now continue to be Lawes. And therefore
where there be divers Provinces, within the Dominion of a Common-wealth,
and in those Provinces diversity of Lawes, which commonly are called the
Customes of each severall Province, we are not to understand that such
Customes have their Force, onely from Length of Time; but that they were
antiently Lawes written, or otherwise made known, for the Constitutions,
and Statutes of their Soveraigns; and are now Lawes, not by vertue of
the Praescription of time, but by the Constitutions of their present
Soveraigns. But if an unwritten Law, in all the Provinces of a Dominion,
shall be generally observed, and no iniquity appear in the use thereof;
that law can be no other but a Law of Nature, equally obliging all
man-kind.




Some Foolish Opinions Of Lawyers Concerning The Making Of Lawes

6. Seeing then all Lawes, written, and unwritten, have their Authority,
and force, from the Will of the Common-wealth; that is to say, from the
Will of the Representative; which in a Monarchy is the Monarch, and
in other Common-wealths the Soveraign Assembly; a man may wonder from
whence proceed such opinions, as are found in the Books of Lawyers of
eminence in severall Common-wealths, directly, or by consequence making
the Legislative Power depend on private men, or subordinate Judges.
As for example, "That the Common Law, hath no Controuler but the
Parlament;" which is true onely where a Parlament has the Soveraign
Power, and cannot be assembled, nor dissolved, but by their own
discretion. For if there be a right in any else to dissolve them, there
is a right also to controule them, and consequently to controule their
controulings. And if there be no such right, then the Controuler of
Lawes is not Parlamentum, but Rex In Parlamento. And where a Parlament
is Soveraign, if it should assemble never so many, or so wise men, from
the Countries subject to them, for whatsoever cause; yet there is no man
will believe, that such an Assembly hath thereby acquired to themselves
a Legislative Power. Item, that the two arms of a Common-wealth,
are Force, and Justice; The First Whereof Is In The King; The Other
Deposited In The Hands Of The Parlament. As if a Common-wealth could
consist, where the Force were in any hand, which Justice had not the
Authority to command and govern.

7. That Law can never be against Reason, our Lawyers are agreed; and
that not the Letter,(that is, every construction of it,) but that which
is according to the Intention of the Legislator, is the Law. And it is
true: but the doubt is, of whose Reason it is, that shall be received
for Law. It is not meant of any private Reason; for then there would be
as much contradiction in the Lawes, as there is in the Schooles; nor yet
(as Sr. Ed, Coke makes it (Sir Edward Coke, upon Littleton Lib. 2. Ch. 6
fol 97. b),) an Artificiall Perfection of Reason, Gotten By Long Study,
Observation, And Experience, (as his was. ) For it is possible long study
may encrease, and confirm erroneous Sentences: and where men build on
false grounds, the more they build, the greater is the ruine; and of
those that study, and observe with equall time, and diligence, the
reasons and resolutions are, and must remain discordant: and therefore
it is not that Juris Prudentia, or wisedome of subordinate Judges;
but the Reason of this our Artificiall Man the Common-wealth, and
his Command, that maketh Law: And the Common-wealth being in
their Representative but one Person, there cannot easily arise any
contradiction in the Lawes; and when there doth, the same Reason is
able, by interpretation, or alteration, to take it away. In all Courts
of Justice, the Soveraign (which is the Person of the Common-wealth,)
is he that Judgeth: The subordinate Judge, ought to have regard to the
reason, which moved his Soveraign to make such Law, that his Sentence
may be according thereunto; which then is his Soveraigns Sentence;
otherwise it is his own, and an unjust one.




Law Made, If Not Also Made Known, Is No Law

8. From this, that the Law is a Command, and a Command consisteth in
declaration, or manifestation of the will of him that commandeth, by
voyce, writing, or some other sufficient argument of the same, we may
understand, that the Command of the Common-wealth, is Law onely to
those, that have means to take notice of it. Over naturall fooles,
children, or mad-men there is no Law, no more than over brute beasts;
nor are they capable of the title of just, or unjust; because they had
never power to make any covenant, or to understand the consequences
thereof; and consequently never took upon them to authorise the
actions of any Soveraign, as they must do that make to themselves a
Common-wealth. And as those from whom Nature, or Accident hath taken
away the notice of all Lawes in generall; so also every man, from whom
any accident, not proceeding from his own default, hath taken away the
means to take notice of any particular Law, is excused, if he observe it
not; And to speak properly, that Law is no Law to him. It is therefore
necessary, to consider in this place, what arguments, and signes be
sufficient for the knowledge of what is the Law; that is to say, what is
the will of the Soveraign, as well in Monarchies, as in other formes of
government.




Unwritten Lawes Are All Of Them Lawes Of Nature

And first, if it be a Law that obliges all the Subjects without
exception, and is not written, nor otherwise published in such places as
they may take notice thereof, it is a Law of Nature. For whatsoever men
are to take knowledge of for Law, not upon other mens words, but every
one from his own reason, must be such as is agreeable to the reason of
all men; which no Law can be, but the Law of Nature. The Lawes of Nature
therefore need not any publishing, nor Proclamation; as being contained
in this one Sentence, approved by all the world, "Do not that to
another, which thou thinkest unreasonable to be done by another to thy
selfe. "

Secondly, if it be a Law that obliges only some condition of men, or one
particular man and be not written, nor published by word, then also it
is a Law of Nature; and known by the same arguments, and signs,
that distinguish those in such a condition, from other Subjects. For
whatsoever Law is not written, or some way published by him that makes
it Law, can be known no way, but by the reason of him that is to obey
it; and is therefore also a Law not only Civill, but Naturall. For
example, if the Soveraign employ a Publique Minister, without written
Instructions what to doe; he is obliged to take for Instructions the
Dictates of Reason; As if he make a Judge, The Judge is to take notice,
that his Sentence ought to be according to the reason of his Soveraign,
which being alwaies understood to be Equity, he is bound to it by the
Law of Nature: Or if an Ambassador, he is (in al things not conteined
in his written Instructions) to take for Instruction that which Reason
dictates to be most conducing to his Soveraigns interest; and so of
all other Ministers of the Soveraignty, publique and private. All which
Instructions of naturall Reason may be comprehended under one name of
Fidelity; which is a branch of naturall Justice.

The Law of Nature excepted, it belongeth to the essence of all other
Lawes, to be made known, to every man that shall be obliged to obey
them, either by word, or writing, or some other act, known to proceed
from the Soveraign Authority. For the will of another, cannot be
understood, but by his own word, or act, or by conjecture taken from his
scope and purpose; which in the person of the Common-wealth, is to be
supposed alwaies consonant to Equity and Reason. And in antient time,
before letters were in common use, the Lawes were many times put into
verse; that the rude people taking pleasure in singing, or reciting
them, might the more easily reteine them in memory. And for the same
reason Solomon adviseth a man, to bind the ten Commandements (Prov. 7.
3) upon his ten fingers. And for the Law which Moses gave to the people
of Israel at the renewing of the Covenant, (Deut. 11. 19) he biddeth
them to teach it their Children, by discoursing of it both at home, and
upon the way; at going to bed, and at rising from bed; and to write
it upon the posts, and dores of their houses; and (Deut. 31. 12) to
assemble the people, man, woman, and child, to heare it read.




Nothing Is Law Where The Legislator Cannot Be Known

Nor is it enough the Law be written, and published; but also that there
be manifest signs, that it proceedeth from the will of the Soveraign.
For private men, when they have, or think they have force enough to
secure their unjust designes, and convoy them safely to their ambitious
ends, may publish for Lawes what they please, without, or against
the Legislative Authority. There is therefore requisite, not only a
Declaration of the Law, but also sufficient signes of the Author, and
Authority. The Author, or Legislator is supposed in every Common-wealth
to be evident, because he is the Soveraign, who having been Constituted
by the consent of every one, is supposed by every one to be sufficiently
known. And though the ignorance, and security of men be such, for the
most part, as that when the memory of the first Constitution of their
Common-wealth is worn out, they doe not consider, by whose power they
use to be defended against their enemies, and to have their industry
protected, and to be righted when injury is done them; yet because no
man that considers, can make question of it, no excuse can be derived
from the ignorance of where the Soveraignty is placed. And it is a
Dictate of Naturall Reason, and consequently an evident Law of Nature,
that no man ought to weaken that power, the protection whereof he hath
himself demanded, or wittingly received against others. Therefore of
who is Soveraign, no man, but by his own fault, (whatsoever evill men
suggest,) can make any doubt. The difficulty consisteth in the evidence
of the Authority derived from him; The removing whereof, dependeth on
the knowledge of the publique Registers, publique Counsels, publique
Ministers, and publique Seales; by which all Lawes are sufficiently
verified.




Difference Between Verifying And Authorising

Verifyed, I say, not Authorised: for the Verification, is but the
Testimony and Record; not the Authority of the law; which consisteth in
the Command of the Soveraign only.




The Law Verifyed By The Subordinate Judge

If therefore a man have a question of Injury, depending on the Law of
Nature; that is to say, on common Equity; the Sentence of the Judge,
that by Commission hath Authority to take cognisance of such causes, is
a sufficient Verification of the Law of Nature in that individuall case.
For though the advice of one that professeth the study of the Law, be
usefull for the avoyding of contention; yet it is but advice; tis the
Judge must tell men what is Law, upon the hearing of the Controversy.




By The Publique Registers

But when the question is of injury, or crime, upon a written Law; every
man by recourse to the Registers, by himself, or others, may (if he
will) be sufficiently enformed, before he doe such injury, or commit the
crime, whither it be an injury, or not: Nay he ought to doe so: for when
a man doubts whether the act he goeth about, be just, or injust; and may
informe himself, if he will; the doing is unlawfull. In like manner, he
that supposeth himself injured, in a case determined by the written Law,
which he may by himself, or others see and consider; if he complaine
before he consults with the Law, he does unjustly, and bewrayeth a
disposition rather to vex other men, than to demand his own right.




By Letters Patent, And Publique Seale

If the question be of Obedience to a publique Officer; To have seen his
Commission, with the Publique Seale, and heard it read; or to have
had the means to be informed of it, if a man would, is a sufficient
Verification of his Authority. For every man is obliged to doe his best
endeavour, to informe himself of all written Lawes, that may concerne
his own future actions.




The Interpretation Of The Law Dependeth On The Soveraign Power

The Legislator known; and the Lawes, either by writing, or by the
light of Nature, sufficiently published; there wanteth yet another
very materiall circumstance to make them obligatory. For it is not the
Letter, but the Intendment, or Meaning; that is to say, the authentique
Interpretation of the Law (which is the sense of the Legislator,) in
which the nature of the Law consisteth; And therefore the Interpretation
of all Lawes dependeth on the Authority Soveraign; and the Interpreters
can be none but those, which the Soveraign, (to whom only the
Subject oweth obedience) shall appoint. For else, by the craft of an
Interpreter, the Law my be made to beare a sense, contrary to that of
the Soveraign; by which means the Interpreter becomes the Legislator.




All Lawes Need Interpretation

All Laws, written, and unwritten, have need of Interpretation.
The unwritten Law of Nature, though it be easy to such, as without
partiality, and passion, make use of their naturall reason, and
therefore leaves the violators thereof without excuse; yet considering
there be very few, perhaps none, that in some cases are not blinded by
self love, or some other passion, it is now become of all Laws the most
obscure; and has consequently the greatest need of able Interpreters.
The written Laws, if they be short, are easily mis-interpreted, from the
divers significations of a word, or two; if long, they be more obscure
by the diverse significations of many words: in so much as no written
Law, delivered in few, or many words, can be well understood, without a
perfect understanding of the finall causes, for which the Law was
made; the knowledge of which finall causes is in the Legislator. To him
therefore there can not be any knot in the Law, insoluble; either by
finding out the ends, to undoe it by; or else by making what ends he
will, (as Alexander did with his sword in the Gordian knot,) by the
Legislative power; which no other Interpreter can doe.




The Authenticall Interpretation Of Law Is Not That Of Writers

The Interpretation of the Lawes of Nature, in a Common-wealth, dependeth
not on the books of Morall Philosophy. The Authority of writers, without
the Authority of the Common-wealth, maketh not their opinions Law,
be they never so true. That which I have written in this Treatise,
concerning the Morall Vertues, and of their necessity, for the
procuring, and maintaining peace, though it bee evident Truth, is not
therefore presently Law; but because in all Common-wealths in the world,
it is part of the Civill Law: For though it be naturally reasonable; yet
it is by the Soveraigne Power that it is Law: Otherwise, it were a great
errour, to call the Lawes of Nature unwritten Law; whereof wee see
so many volumes published, and in them so many contradictions of one
another, and of themselves.




The Interpreter Of The Law Is The Judge Giving Sentence Viva Voce

In Every Particular Case

The Interpretation of the Law of Nature, is the Sentence of the Judge
constituted by the Soveraign Authority, to heare and determine such
controversies, as depend thereon; and consisteth in the application of
the Law to the present case. For in the act of Judicature, the Judge
doth no more but consider, whither the demand of the party, be consonant
to naturall reason, and Equity; and the Sentence he giveth, is therefore
the Interpretation of the Law of Nature; which Interpretation is
Authentique; not because it is his private Sentence; but because
he giveth it by Authority of the Soveraign, whereby it becomes the
Soveraigns Sentence; which is Law for that time, to the parties
pleading.




The Sentence Of A Judge, Does Not Bind Him, Or Another Judge

To Give Like Sentence In Like Cases Ever After

But because there is no Judge Subordinate, nor Soveraign, but may erre
in a Judgement of Equity; if afterward in another like case he find it
more consonant to Equity to give a contrary Sentence, he is obliged to
doe it. No mans error becomes his own Law; nor obliges him to persist
in it. Neither (for the same reason) becomes it a Law to other Judges,
though sworn to follow it. For though a wrong Sentence given by
authority of the Soveraign, if he know and allow it, in such Lawes as
are mutable, be a constitution of a new Law, in cases, in which every
little circumstance is the same; yet in Lawes immutable, such as are the
Lawes of Nature, they are no Lawes to the same, or other Judges, in the
like cases for ever after. Princes succeed one another; and one Judge
passeth, another commeth; nay, Heaven and Earth shall passe; but not one
title of the Law of Nature shall passe; for it is the Eternall Law of
God. Therefore all the Sentences of precedent Judges that have ever
been, cannot all together make a Law contrary to naturall Equity: Nor
any Examples of former Judges, can warrant an unreasonable Sentence, or
discharge the present Judge of the trouble of studying what is Equity
(in the case he is to Judge,) from the principles of his own naturall
reason. For example sake, 'Tis against the Law of Nature, To Punish The
Innocent; and Innocent is he that acquitteth himselfe Judicially, and is
acknowledged for Innocent by the Judge. Put the case now, that a man is
accused of a capitall crime, and seeing the powers and malice of some
enemy, and the frequent corruption and partiality of Judges, runneth
away for feare of the event, and afterwards is taken, and brought to a
legall triall, and maketh it sufficiently appear, he was not guilty of
the crime, and being thereof acquitted, is neverthelesse condemned to
lose his goods; this is a manifest condemnation of the Innocent. I say
therefore, that there is no place in the world, where this can be an
interpretation of a Law of Nature, or be made a Law by the Sentences of
precedent Judges, that had done the same. For he that judged it first,
judged unjustly; and no Injustice can be a pattern of Judgement to
succeeding Judges. A written Law may forbid innocent men to fly, and
they may be punished for flying: But that flying for feare of injury,
should be taken for presumption of guilt, after a man is already
absolved of the crime Judicially, is contrary to the nature of a
Presumption, which hath no place after Judgement given. Yet this is set
down by a great Lawyer for the common Law of England. "If a man," saith
he, "that is Innocent, be accused of Felony, and for feare flyeth for
the same; albeit he judicially acquitteth himselfe of the Felony; yet
if it be found that he fled for the Felony, he shall notwithstanding his
Innocency, Forfeit all his goods, chattels, debts, and duties. For as
to the Forfeiture of them, the Law will admit no proofe against the
Presumption in Law, grounded upon his flight. " Here you see, An Innocent
Man, Judicially Acquitted, Notwithstanding His Innocency, (when no
written Law forbad him to fly) after his acquitall, Upon A Presumption
In Law, condemned to lose all the goods he hath. If the Law ground upon
his flight a Presumption of the fact, (which was Capitall,) the Sentence
ought to have been Capitall: if the presumption were not of the Fact,
for what then ought he to lose his goods? This therefore is no Law of
England; nor is the condemnation grounded upon a Presumption of Law, but
upon the Presumption of the Judges. It is also against Law, to say
that no Proofe shall be admitted against a Presumption of Law. For
all Judges, Soveraign and subordinate, if they refuse to heare Proofe,
refuse to do Justice: for though the Sentence be Just, yet the Judges
that condemn without hearing the Proofes offered, are Unjust Judges; and
their Presumption is but Prejudice; which no man ought to bring with him
to the Seat of Justice, whatsoever precedent judgements, or examples he
shall pretend to follow. There be other things of this nature, wherein
mens Judgements have been perverted, by trusting to Precedents: but this
is enough to shew, that though the Sentence of the Judge, be a Law to
the party pleading, yet it is no Law to any Judge, that shall succeed
him in that Office.

In like manner, when question is of the Meaning of written Lawes, he is
not the Interpreter of them, that writeth a Commentary upon them. For
Commentaries are commonly more subject to cavill, than the Text; and
therefore need other Commentaries; and so there will be no end of such
Interpretation. And therefore unlesse there be an Interpreter authorised
by the Soveraign, from which the subordinate Judges are not to recede,
the Interpreter can be no other than the ordinary Judges, in the some
manner, as they are in cases of the unwritten Law; and their Sentences
are to be taken by them that plead, for Lawes in that particular case;
but not to bind other Judges, in like cases to give like judgements.
For a Judge may erre in the Interpretation even of written Lawes; but no
errour of a subordinate Judge, can change the Law, which is the generall
Sentence of the Soveraigne.




The Difference Between The Letter And Sentence Of The Law

In written Lawes, men use to make a difference between the Letter, and
the Sentence of the Law: And when by the Letter, is meant whatsoever
can be gathered from the bare words, 'tis well distinguished. For the
significations of almost all words, are either in themselves, or in the
metaphoricall use of them, ambiguous; and may be drawn in argument, to
make many senses; but there is onely one sense of the Law. But if by the
Letter, be meant the Literall sense, then the Letter, and the Sentence
or intention of the Law, is all one. For the literall sense is that,
which the Legislator is alwayes supposed to be Equity: For it were a
great contumely for a Judge to think otherwise of the Soveraigne.
He ought therefore, if the Word of the Law doe not fully authorise a
reasonable Sentence, to supply it with the Law of Nature; or if the
case be difficult, to respit Judgement till he have received more ample
authority. For Example, a written Law ordaineth, that he which is thrust
out of his house by force, shall be restored by force: It happens that
a man by negligence leaves his house empty, and returning is kept out by
force, in which case there is no speciall Law ordained. It is evident,
that this case is contained in the same Law: for else there is no remedy
for him at all; which is to be supposed against the Intention of the
Legislator. Again, the word of the Law, commandeth to Judge according
to the Evidence: A man is accused falsly of a fact, which the Judge saw
himself done by another; and not by him that is accused. In this case
neither shall the Letter of the Law be followed to the condemnation of
the Innocent, nor shall the Judge give Sentence against the evidence
of the Witnesses; because the Letter of the Law is to the contrary:
but procure of the Soveraign that another be made Judge, and himselfe
Witnesse. So that the incommodity that follows the bare words of a
written Law, may lead him to the Intention of the Law, whereby to
interpret the same the better; though no Incommodity can warrant a
Sentence against the Law. For every Judge of Right, and Wrong, is not
Judge of what is Commodious, or Incommodious to the Common-wealth.




The Abilities Required In A Judge

The abilities required in a good Interpreter of the Law, that is to say,
in a good Judge, are not the same with those of an Advocate; namely the
study of the Lawes. For a Judge, as he ought to take notice of the Fact,
from none but the Witnesses; so also he ought to take notice of the
Law, from nothing but the Statutes, and Constitutions of the Soveraign,
alledged in the pleading, or declared to him by some that have authority
from the Soveraign Power to declare them; and need not take care
before-hand, what hee shall Judge; for it shall bee given him what hee
shall say concerning the Fact, by Witnesses; and what hee shall say in
point of Law, from those that shall in their pleadings shew it, and by
authority interpret it upon the place. The Lords of Parlament in England
were Judges, and most difficult causes have been heard and determined
by them; yet few of them were much versed in the study of the Lawes,
and fewer had made profession of them: and though they consulted with
Lawyers, that were appointed to be present there for that purpose; yet
they alone had the authority of giving Sentence. In like manner, in
the ordinary trialls of Right, Twelve men of the common People, are the
Judges, and give Sentence, not onely of the Fact, but of the Right; and
pronounce simply for the Complaynant, or for the Defendant; that is to
say, are Judges not onely of the Fact, but also of the Right: and in a
question of crime, not onely determine whether done, or not done; but
also whether it be Murder, Homicide, Felony, Assault, and the like,
which are determinations of Law: but because they are not supposed to
know the Law of themselves, there is one that hath Authority to enforme
them of it, in the particular case they are to Judge of. But yet if they
judge not according to that he tells them, they are not subject thereby
to any penalty; unlesse it be made appear, they did it against their
consciences, or had been corrupted by reward. The things that make
a good Judge, or good Interpreter of the Lawes, are, first A Right
Understanding of that principall Law of Nature called Equity; which
depending not on the reading of other mens Writings, but on the
goodnesse of a mans own naturall Reason, and Meditation, is presumed
to be in those most, that have had most leisure, and had the most
inclination to meditate thereon. Secondly, Contempt Of Unnecessary
Riches, and Preferments. Thirdly, To Be Able In Judgement To Devest
Himselfe Of All Feare, Anger, Hatred, Love, And Compassion. Fourthly,
and lastly, Patience To Heare; Diligent Attention In Hearing; And Memory
To Retain, Digest And Apply What He Hath Heard.




Divisions Of Law

The difference and division of the Lawes, has been made in divers
manners, according to the different methods, of those men that have
written of them. For it is a thing that dependeth not on Nature, but on
the scope of the Writer; and is subservient to every mans proper method.
In the Institutions of Justinian, we find seven sorts of Civill Lawes.

1. The Edicts, Constitutions, and Epistles Of The Prince, that is, of
the Emperour; because the whole power of the people was in him. Like
these, are the Proclamations of the Kings of England.

2. The Decrees Of The Whole People Of Rome (comprehending the Senate,)
when they were put to the Question by the Senate. These were Lawes, at
first, by the vertue of the Soveraign Power residing in the people; and
such of them as by the Emperours were not abrogated, remained Lawes by
the Authority Imperiall. For all Lawes that bind, are understood to be
Lawes by his authority that has power to repeale them. Somewhat like to
these Lawes, are the Acts of Parliament in England.

3. The Decrees Of The Common People (excluding the Senate,) when they
were put to the question by the Tribune of the people. For such of them
as were not abrogated by the Emperours, remained Lawes by the Authority
Imperiall. Like to these, were the Orders of the House of Commons in
England.

4.
Senatus Consulta, the Orders Of The Senate; because when the people
of Rome grew so numerous, as it was inconvenient to assemble them; it
was thought fit by the Emperour, that men should Consult the Senate in
stead of the people: And these have some resemblance with the Acts of
Counsell.

5. The Edicts Of Praetors, and (in some Cases) of the Aediles: such as
are the Chiefe Justices in the Courts of England.

6. Responsa Prudentum; which were the Sentences, and Opinions of those
Lawyers, to whom the Emperour gave Authority to interpret the Law, and
to give answer to such as in matter of Law demanded their advice;
which Answers, the Judges in giving Judgement were obliged by the
Constitutions of the Emperour to observe; And should be like the Reports
of Cases Judged, if other Judges be by the Law of England bound to
observe them. For the Judges of the Common Law of England, are not
properly Judges, but Juris Consulti; of whom the Judges, who are either
the Lords, or Twelve men of the Country, are in point of Law to ask
advice.

7. Also, Unwritten Customes, (which in their own nature are an imitation
of Law,) by the tacite consent of the Emperour, in case they be not
contrary to the Law of Nature, are very Lawes.

Another division of Lawes, is into Naturall and Positive. Naturall are
those which have been Lawes from all Eternity; and are called not onely
Naturall, but also Morall Lawes; consisting in the Morall Vertues, as
Justice, Equity, and all habits of the mind that conduce to Peace, and
Charity; of which I have already spoken in the fourteenth and fifteenth
Chapters.

Positive, are those which have not been for Eternity; but have been
made Lawes by the Will of those that have had the Soveraign Power over
others; and are either written, or made known to men, by some other
argument of the Will of their Legislator.




Another Division Of Law

Again, of Positive Lawes some are Humane, some Divine; And of Humane
positive lawes, some are Distributive, some Penal. Distributive are
those that determine the Rights of the Subjects, declaring to every man
what it is, by which he acquireth and holdeth a propriety in lands,
or goods, and a right or liberty of action; and these speak to all
the Subjects. Penal are those, which declare, what Penalty shall be
inflicted on those that violate the Law; and speak to the Ministers
and Officers ordained for execution. For though every one ought to be
informed of the Punishments ordained beforehand for their transgression;
neverthelesse the Command is not addressed to the Delinquent, (who
cannot be supposed will faithfully punish himselfe,) but to publique
Ministers appointed to see the Penalty executed. And these Penal Lawes
are for the most part written together with the Lawes Distributive; and
are sometimes called Judgements. For all Lawes are generall judgements,
or Sentences of the Legislator; as also every particular Judgement, is a
Law to him, whose case is Judged.




Divine Positive Law How Made Known To Be Law

Divine Positive Lawes (for Naturall Lawes being Eternall, and
Universall, are all Divine,) are those, which being the Commandements of
God, (not from all Eternity, nor universally addressed to all men, but
onely to a certain people, or to certain persons,) are declared for
such, by those whom God hath authorised to declare them. But this
Authority of man to declare what be these Positive Lawes of God, how can
it be known? God may command a man by a supernaturall way, to deliver
Lawes to other men. But because it is of the essence of Law, that he who
is to be obliged, be assured of the Authority of him that declareth
it, which we cannot naturally take notice to be from God, How Can A Man
Without Supernaturall Revelation Be Assured Of The Revelation Received
By The Declarer? and How Can He Be Bound To Obey Them? For the first
question, how a man can be assured of the Revelation of another, without
a Revelation particularly to himselfe, it is evidently impossible:
for though a man may be induced to believe such Revelation, from the
Miracles they see him doe, or from seeing the Extraordinary sanctity of
his life, or from seeing the Extraordinary wisedome, or Extraordinary
felicity of his Actions, all which are marks of Gods extraordinary
favour; yet they are not assured evidence of speciall Revelation.
Miracles are Marvellous workes: but that which is marvellous to one,
may not be so to another. Sanctity may be feigned; and the visible
felicities of this world, are most often the work of God by Naturall,
and ordinary causes. And therefore no man can infallibly know by
naturall reason, that another has had a supernaturall revelation of Gods
will; but only a beliefe; every one (as the signs thereof shall appear
greater, or lesser) a firmer, or a weaker belief.

But for the second, how he can be bound to obey them; it is not so hard.
For if the Law declared, be not against the Law of Nature (which is
undoubtedly Gods Law) and he undertake to obey it, he is bound by his
own act; bound I say to obey it, but not bound to believe it: for mens
beliefe, and interiour cogitations, are not subject to the commands,
but only to the operation of God, ordinary, or extraordinary. Faith of
Supernaturall Law, is not a fulfilling, but only an assenting to the
same; and not a duty that we exhibite to God, but a gift which God
freely giveth to whom he pleaseth; as also Unbelief is not a breach
of any of his Lawes; but a rejection of them all, except the Lawes
Naturall. But this that I say, will be made yet cleerer, by the
Examples, and Testimonies concerning this point in holy Scripture. The
Covenant God made with Abraham (in a Supernaturall Manner) was thus,
(Gen. 17. 10) "This is the Covenant which thou shalt observe between
Me and Thee and thy Seed after thee. " Abrahams Seed had not this
revelation, nor were yet in being; yet they are a party to the Covenant,
and bound to obey what Abraham should declare to them for Gods Law;
which they could not be, but in vertue of the obedience they owed to
their Parents; who (if they be Subject to no other earthly power, as
here in the case of Abraham) have Soveraign power over their children,
and servants. Againe, where God saith to Abraham, "In thee shall all
Nations of the earth be blessed: For I know thou wilt command thy
children, and thy house after thee to keep the way of the Lord, and to
observe Righteousnesse and Judgement," it is manifest, the obedience of
his Family, who had no Revelation, depended on their former obligation
to obey their Soveraign. At Mount Sinai Moses only went up to God; the
people were forbidden to approach on paine of death; yet were they bound
to obey all that Moses declared to them for Gods Law. Upon what ground,
but on this submission of their own, "Speak thou to us, and we will
heare thee; but let not God speak to us, lest we dye? " By which two
places it sufficiently appeareth, that in a Common-wealth, a subject
that has no certain and assured Revelation particularly to himself
concerning the Will of God, is to obey for such, the Command of
the Common-wealth: for if men were at liberty, to take for Gods
Commandements, their own dreams, and fancies, or the dreams and
fancies of private men; scarce two men would agree upon what is Gods
Commandement; and yet in respect of them, every man would despise the
Commandements of the Common-wealth. I conclude therefore, that in all
things not contrary to the Morall Law, (that is to say, to the Law of
Nature,) all Subjects are bound to obey that for divine Law, which is
declared to be so, by the Lawes of the Common-wealth. Which also is
evident to any mans reason; for whatsoever is not against the Law of
Nature, may be made Law in the name of them that have the Soveraign
power; and there is no reason men should be the lesse obliged by it,
when tis propounded in the name of God. Besides, there is no place in
the world where men are permitted to pretend other Commandements of God,
than are declared for such by the Common-wealth. Christian States punish
those that revolt from Christian Religion, and all other States, those
that set up any Religion by them forbidden. For in whatsoever is not
regulated by the Common-wealth, tis Equity (which is the Law of Nature,
and therefore an eternall Law of God) that every man equally enjoy his
liberty.




Another Division Of Lawes

There is also another distinction of Laws, into Fundamentall, and Not
Fundamentall: but I could never see in any Author, what a Fundamentall
Law signifieth. Neverthelesse one may very reasonably distinguish Laws
in that manner.




A Fundamentall Law What

For a Fundamentall Law in every Common-wealth is that, which being taken
away, the Common-wealth faileth, and is utterly dissolved; as a building
whose Foundation is destroyed. And therefore a Fundamentall Law is that,
by which Subjects are bound to uphold whatsoever power is given to the
Soveraign, whether a Monarch, or a Soveraign Assembly, without which the
Common-wealth cannot stand, such as is the power of War and Peace, of
Judicature, of Election of Officers, and of doing whatsoever he shall
think necessary for the Publique good. Not Fundamentall is that
the abrogating whereof, draweth not with it the dissolution of the
Common-Wealth; such as are the Lawes Concerning Controversies between
subject and subject. Thus much of the Division of Lawes.




Difference Between Law And Right

I find the words Lex Civilis, and Jus Civile, that is to say, Law and
Right Civil, promiscuously used for the same thing, even in the most
learned Authors; which neverthelesse ought not to be so. For Right is
Liberty, namely that Liberty which the Civil Law leaves us: But Civill
Law is an Obligation; and takes from us the Liberty which the Law of
Nature gave us. Nature gave a Right to every man to secure himselfe
by his own strength, and to invade a suspected neighbour, by way of
prevention; but the Civill Law takes away that Liberty, in all cases
where the protection of the Lawe may be safely stayd for. Insomuch as
Lex and Jus, are as different as Obligation and Liberty.




And Between A Law And A Charter

Likewise Lawes and Charters are taken promiscuously for the same
thing. Yet Charters are Donations of the Soveraign; and not Lawes, but
exemptions from Law. The phrase of a Law is Jubeo, Injungo, I Command,
and Enjoyn: the phrase of a Charter is Dedi, Concessi, I Have Given, I
Have Granted: but what is given or granted, to a man, is not forced
upon him, by a Law. A Law may be made to bind All the Subjects of a
Common-wealth: a Liberty, or Charter is only to One man, or some One
part of the people. For to say all the people of a Common-wealth, have
Liberty in any case whatsoever; is to say, that in such case, there hath
been no Law made; or else having been made, is now abrogated.



CHAPTER XXVII. OF CRIMES, EXCUSES, AND EXTENUATIONS



Sinne What

A Sinne, is not onely a Transgression of a Law, but also any Contempt of
the Legislator. For such Contempt, is a breach of all his Lawes at once.
And therefore may consist, not onely in the Commission of a Fact, or in
the Speaking of Words by the Lawes forbidden, or in the Omission of
what the Law commandeth, but also in the Intention, or purpose to
transgresse. For the purpose to breake the Law, is some degree of
Contempt of him, to whom it belongeth to see it executed. To be
delighted in the Imagination onely, of being possessed of another mans
goods, servants, or wife, without any intention to take them from him
by force, or fraud, is no breach of the Law, that sayth, "Thou shalt not
covet:" nor is the pleasure a man my have in imagining, or dreaming of
the death of him, from whose life he expecteth nothing but dammage, and
displeasure, a Sinne; but the resolving to put some Act in execution,
that tendeth thereto. For to be pleased in the fiction of that, which
would please a man if it were reall, is a Passion so adhaerent to the
Nature both of a man, and every other living creature, as to make it a
Sinne, were to make Sinne of being a man. The consideration of this,
has made me think them too severe, both to themselves, and others, that
maintain, that the First motions of the mind, (though checked with the
fear of God) be Sinnes. But I confesse it is safer to erre on that hand,
than on the other.




A Crime What

A Crime, is a sinne, consisting in the Committing (by Deed, or Word)
of that which the Law forbiddeth, or the Omission of what it hath
commanded. So that every Crime is a sinne; but not every sinne a Crime.
To intend to steale, or kill, is a sinne, though it never appeare in
Word, or Fact: for God that seeth the thoughts of man, can lay it to
his charge: but till it appear by some thing done, or said, by which
the intention may be Crime; which distinction the Greeks observed in
the word amartema, and egklema, or aitia; wherof the former, (which is
translated Sinne,) signifieth any swarving from the Law whatsoever; but
the two later, (which are translated Crime,) signifie that sinne onely,
whereof one man may accuse another. But of Intentions, which never
appear by any outward act, there is no place for humane accusation. In
like manner the Latines by Peccatum, which is Sinne, signifie all manner
of deviation from the Law; but by crimen, (which word they derive from
Cerno, which signifies to perceive,) they mean onely such sinnes, as my
be made appear before a Judge; and therfore are not meer Intentions.




Where No Civill Law Is, There Is No Crime

From this relation of Sinne to the Law, and of Crime to the Civill
Law, may be inferred, First, that where Law ceaseth, Sinne ceaseth.
But because the Law of Nature is eternall, Violation of Covenants,
Ingratitude, Arrogance, and all Facts contrary to any Morall vertue, can
never cease to be Sinne. Secondly, that the Civill Law ceasing, Crimes
cease: for there being no other Law remaining, but that of Nature, there
is no place for Accusation; every man being his own Judge, and accused
onely by his own Conscience, and cleared by the Uprightnesse of his own
Intention. When therefore his Intention is Right, his fact is no Sinne:
if otherwise, his fact is Sinne; but not Crime. Thirdly, That when the
Soveraign Power ceaseth, Crime also ceaseth: for where there is no such
Power, there is no protection to be had from the Law; and therefore
every one may protect himself by his own power: for no man in the
Institution of Soveraign Power can be supposed to give away the Right
of preserving his own body; for the safety whereof all Soveraignty was
ordained. But this is to be understood onely of those, that have not
themselves contributed to the taking away of the Power that protected
them: for that was a Crime from the beginning.




Ignorance Of The Law Of Nature Excuseth No Man

The source of every Crime, is some defect of the Understanding; or some
errour in Reasoning, or some sudden force of the Passions. Defect in
the Understanding, is Ignorance; in Reasoning, Erroneous Opinion. Again,
ignorance is of three sort; of the Law, and of the Soveraign, and of the
Penalty. Ignorance of the Law of Nature Excuseth no man; because every
man that hath attained to the use of Reason, is supposed to know, he
ought not to do to another, what he would not have done to himselfe.
Therefore into what place soever a man shall come, if he do any thing
contrary to that Law, it is a Crime. If a man come from the Indies
hither, and perswade men here to receive a new Religion, or teach them
any thing that tendeth to disobedience of the Lawes of this Country,
though he be never so well perswaded of the truth of what he teacheth,
he commits a Crime, and may be justly punished for the same, not onely
because his doctrine is false, but also because he does that which he
would not approve in another, namely, that comming from hence, he should
endeavour to alter the Religion there. But ignorance of the Civill Law,
shall Excuse a man in a strange Country, till it be declared to him;
because, till then no Civill Law is binding.




Ignorance Of The Civill Law Excuseth Sometimes

In the like manner, if the Civill Law of a mans own Country, be not
so sufficiently declared, as he may know it if he will; nor the Action
against the Law of Nature; the Ignorance is a good Excuse: In other
cases ignorance of the Civill Law, Excuseth not.




Ignorance Of The Soveraign Excuseth Not

Ignorance of the Soveraign Power, in the place of a mans ordinary
residence, Excuseth him not; because he ought to take notice of the
Power, by which he hath been protected there.




Ignorance Of The Penalty Excuseth Not

Ignorance of the Penalty, where the Law is declared, Excuseth no man:
For in breaking the Law, which without a fear of penalty to follow, were
not a Law, but vain words, he undergoeth the penalty, though he know not
what it is; because, whosoever voluntarily doth any action, accepteth
all the known consequences of it; but Punishment is a known consequence
of the violation of the Lawes, in every Common-wealth; which punishment,
if it be determined already by the Law, he is subject to that; if not,
then is he subject to Arbitrary punishment. For it is reason, that he
which does Injury, without other limitation than that of his own Will,
should suffer punishment without other limitation, than that of his Will
whose Law is thereby violated.




Punishments Declared Before The Fact, Excuse From Greater Punishments

After It

But when a penalty, is either annexed to the Crime in the Law it selfe,
or hath been usually inflicted in the like cases; there the Delinquent
is Excused from a greater penalty. For the punishment foreknown, if not
great enough to deterre men from the action, is an invitement to it:
because when men compare the benefit of their Injustice, with the harm
of their punishment, by necessity of Nature they choose that which
appeareth best for themselves; and therefore when they are punished more
than the Law had formerly determined, or more than others were punished
for the same Crime; it the Law that tempted, and deceiveth them.




Nothing Can Be Made A Crime By A Law Made After The Fact

No Law, made after a Fact done, can make it a Crime: because if the
Fact be against the Law of Nature, the Law was before the Fact; and a
Positive Law cannot be taken notice of, before it be made; and therefore
cannot be Obligatory. But when the Law that forbiddeth a Fact, is made
before the Fact be done; yet he that doth the Fact, is lyable to the
Penalty ordained after, in case no lesser Penalty were made known
before, neither by Writing, nor by Example, for the reason immediatly
before alledged.




False Principles Of Right And Wrong Causes Of Crime

From defect in Reasoning, (that is to say, from Errour,) men are prone
to violate the Lawes, three wayes. First, by Presumption of false
Principles; as when men from having observed how in all places, and
in all ages, unjust Actions have been authorised, by the force, and
victories of those who have committed them; and that potent men,
breaking through the Cob-web Lawes of their Country, the weaker sort,
and those that have failed in their Enterprises, have been esteemed the
onely Criminals; have thereupon taken for Principles, and grounds of
their Reasoning, "That Justice is but a vain word: That whatsoever a man
can get by his own Industry, and hazard, is his own: That the Practice
of all Nations cannot be unjust: That examples of former times are good
Arguments of doing the like again;" and many more of that kind: Which
being granted, no Act in it selfe can be a Crime, but must be made so
(not by the Law, but) by the successe of them that commit it; and the
same Fact be vertuous, or vicious, as Fortune pleaseth; so that what
Marius makes a Crime, Sylla shall make meritorious, and Caesar (the same
Lawes standing) turn again into a Crime, to the perpetuall disturbance
of the Peace of the Common-wealth.




False Teachers Mis-interpreting The Law Of Nature Secondly, by false
Teachers, that either mis-interpret the Law of Nature, making it thereby
repugnant to the Law Civill; or by teaching for Lawes, such Doctrines of
their own, or Traditions of former times, as are inconsistent with the
duty of a Subject.




And False Inferences From True Principles, By Teachers

Thirdly, by Erroneous Inferences from True Principles; which happens
commonly to men that are hasty, and praecipitate in concluding, and
resolving what to do; such as are they, that have both a great opinion
of their own understanding, and believe that things of this nature
require not time and study, but onely common experience, and a good
naturall wit; whereof no man thinks himselfe unprovided: whereas the
knowledge, of Right and Wrong, which is no lesse difficult, there is no
man will pretend to, without great and long study. And of those defects
in Reasoning, there is none that can Excuse (though some of them may
Extenuate) a Crime, in any man, that pretendeth to the administration of
his own private businesse; much lesse in them that undertake a publique
charge; because they pretend to the Reason, upon the want whereof they
would ground their Excuse.




By Their Passions;

Of the Passions that most frequently are the causes of Crime, one,
is Vain-glory, or a foolish over-rating of their own worth; as if
difference of worth, were an effect of their wit, or riches, or bloud,
or some other naturall quality, not depending on the Will of those that
have the Soveraign Authority. From whence proceedeth a Presumption that
the punishments ordained by the Lawes, and extended generally to all
Subjects, ought not to be inflicted on them, with the same rigour they
are inflicted on poore, obscure, and simple men, comprehended under the
name of the Vulgar.




Presumption Of Riches

Therefore it happeneth commonly, that such as value themselves by the
greatnesse of their wealth, adventure on Crimes, upon hope of escaping
punishment, by corrupting publique Justice, or obtaining Pardon by Mony,
or other rewards.




And Friends

And that such as have multitude of Potent Kindred; and popular men, that
have gained reputation amongst the Multitude, take courage to violate
the Lawes, from a hope of oppressing the Power, to whom it belongeth to
put them in execution.




Wisedome

And that such as have a great, and false opinion of their own Wisedome,
take upon them to reprehend the actions, and call in question the
Authority of them that govern, and so to unsettle the Lawes with their
publique discourse, as that nothing shall be a Crime, but what their own
designes require should be so. It happeneth also to the same men, to be
prone to all such Crimes, as consist in Craft, and in deceiving of their
Neighbours; because they think their designes are too subtile to be
perceived. These I say are effects of a false presumption of their own
Wisdome. For of them that are the first movers in the disturbance of
Common-wealth, (which can never happen without a Civill Warre,) very few
are left alive long enough, to see their new Designes established: so
that the benefit of their Crimes, redoundeth to Posterity, and such as
would least have wished it: which argues they were not as wise, as
they thought they were. And those that deceive upon hope of not being
observed, do commonly deceive themselves, (the darknesse in which they
believe they lye hidden, being nothing else but their own blindnesse;)
and are no wiser than Children, that think all hid, by hiding their own
eyes.

And generally all vain-glorious men, (unlesse they be withall timorous,)
are subject to Anger; as being more prone than others to interpret for
contempt, the ordinary liberty of conversation: And there are few Crimes
that may not be produced by Anger.




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.