 Chapter 26 Of Civil Laws I understand the laws that men are therefore bound to observe, because they are members not of this or that commonwealth in particular, but of a commonwealth, for the knowledge of particular laws belong to them that profess the study of the laws of their several countries, but the knowledge of civil law in general to any man. The ancient law of Rome was called their civil law, from the word civitas, which signifies a commonwealth, and those countries which, having been under the Roman Empire and governed by that law, retain still such part thereof as they think fit. Call that part the civil law to distinguish it from the rest of their own civil laws. But that is not it I intend to speak of here, my design being not to show what is law here and there, but what is law, as Plato, Aristotle, Cicero, and diverse others have done, without taking upon them the profession of the study of the law. And first it is manifest that law in general is not counsel, 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 civil law it addeth only the name of the person commanding, which is persona civitatis, the person of the commonwealth. Which considered, I define civil law in this manner. Civil law is to every subject those rules which the commonwealth hath commanded him, by word, writing, or other significant sign of the will, to make use of for the distinction of right and wrong. That is to say, of that 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 seeeth that some laws are addressed to all subjects in general, some to particular provinces, some to particular vocations, and some to particular men, and are therefore laws to every of those whom the command is directed, and to none else. Also that laws are the rules of just and unjust, nothing being reputed unjust that is not contrary to some law. Likewise that none can make laws but the commonwealth, because our subjection is to the commonwealth 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 be necessary consequence be deducted ought to be acknowledged for truth. Now I deduce from it this that followeth. 1. The legislature in all commonwealths is only the sovereign, be he one man as in a monarchy, or one assembly of men as in a democracy or aristocracy. For the legislature is he that maketh the law, and the commonwealth only prescribes and commandeth the observation of those rules which we call law. Therefore the commonwealth is a legislature. But the commonwealth is no person, nor has capacity to do anything but by the representative, that is the sovereign, and therefore the sovereign is the sole legislature. For the same reason none can abrogate a law made but the sovereign, because a law is not abrogated but by another law that forbideth it to be put in execution. The sovereign of a commonwealth, be it an assembly or one man, is not subject to the civil laws. For having power to make and repeal laws he may, when he pleaseth, free himself from that subjection by repealing those laws 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 himself, because he that can bind can release, and therefore he that is bound to himself only is not bound. When long use obtaineth the authority of a law it is not the length of time that makeeth the authority, but the will of the sovereign signified by his silence, for silence is sometimes an argument of consent, and it is no longer law, than the sovereign shall be silent therein. And therefore if the sovereign shall have a question of right grounded, not upon his present will, but upon the laws formerly made, the length of time shall bring no prejudice to his right, but the question shall 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 customs, law, but such as reasonable, and that evil customs are to be abolished, but judgment of what is reasonable, and of what is to be abolished, belongeth to him that makeeth the law, which is the sovereign assembly or monarch. Therefore the law of nature and the civil law contain each other and are of equal extent. For the laws of nature which consist in equity, justice, gratitude, and other moral virtues on these depending in the condition of mere nature, as I have said before in the end of the fifteenth chapter, are not proper laws, but qualities that dispose men to peace and to obedience. When a commonwealth is once settled, then are they actually laws and not before, as being then the commands of the commonwealth, and therefore also civil laws, for it is the sovereign power that obliges men to obey them. For the differences of private men, to declare what is equity, what is justice, and is moral virtue, and to make them binding, there is need of the ordinances of sovereign power and punishments to be ordained for such as shall break them, which ordinances are therefore part of the civil law. The law of nature, therefore, is a part of the civil law in all commonwealths of the world. Reciprocally also the civil 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 commonwealth hath covenanted to obey the civil law, either one with another, as when they assemble to make a common representative, or with the representative itself, one by one, when, subdued by the sword, they promise obedience that they may receive life, and therefore obedience to the civil law is also part of the law of nature. Civil and natural law are not different kinds, but different parts of law, whereof one part, being written, is called civil, the other, unwritten, natural. But the right of nature, that is, the natural liberty of man, may, by the civil law, be abridged and restrained. Nay, the end of making laws is no other but such restraint, without which there cannot possibly be any peace. And law was brought into the world for nothing else but to limit the natural liberty of particular men in such manner as they might not hurt, but assist one another, and join together against a common enemy. Five. If the sovereign of one commonwealth subdue a people that have lived under other written laws, and afterwards govern them by the same laws by which they were governed before, yet those laws are the civil laws of the victor, and not of the vanquished commonwealth. For the legislator is he, not by whose authority the laws were first made, but by whose authority they now continue to be laws. And therefore, where there be diverse provinces within the dominion of a commonwealth, and are in those provinces diversity of laws which commonly are called the customs of each several province, we are not to understand that such customs have their force only from length of time, but that they were anciently laws written, or otherwise made known, for the constitutions and statutes of their sovereigns, and are now laws not by virtue of the prescription of time, but by the constitutions of their present sovereigns. Not 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 law but a law of nature, equally abiding all mankind. Six. Seeing then all laws, written and unwritten, have their authority and force from the will of the commonwealth, that is to say, from the will of the representative, which in a monarchy is the monarch, and in other commonwells, the sovereign assembly, a man may wonder from once precede such opinions as are found in the books of lawyers of eminence in several commonwells, directly or by consequence, making the legislative power depend on private men or subordinate judges, as for example, that the common law hath no controller but the parliament, which is true only where a parliament has the sovereign power, and cannot be assembled nor dissolved, but by their own discretion. Or if there be a right in any else to dissolve them, there is a right also to control them, and consequently to control their controlings. And if there be no such right, then the controller of the laws is not parliamentum, but wrecks in parliamento, and where a parliament is sovereign, if it should assemble never so many, or so wise men from the country 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 commonwealth are force and justice, the first whereof is in the king, the other deposited in the hands of parliament, as if a commonwealth could consist where the force were in any hand which justice had not the authority to command and govern. Seven. That law can never be against reason, our lawyers are agreed, and that not the latter, 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 laws as there is in the schools, nor yet, as Sir Edward Koch makes it, an artificial perfection of reason, gotten by long study, observation, and experience, as his was. For it is possible long study may increase and confirm erroneous sentences, and where men build on false grounds, the more they build the greater is the ruin. And of those that study and observe with equal time and diligence, the reasons and resolutions are and must remain discordant, and therefore it is not that jurist prudencia or wisdom of subordinate judges, but the reason of this, our artificial man, the commonwealth, and his command, that maketh law, and the commonwealth being in their representative but one person, there cannot easily arise any contradiction in the laws, and when there doth, the same reason is able, by interpretation or alteration, to take it away. In all courts of justice, the sovereign, which is the person of the commonwealth, is he that judgeth. The subordinate judge ought to have regard to the reason which moved his sovereign to make such law, that his sentence may be according thereunto, which then is his sovereign sentence, otherwise it is his own, and an unjust one. Eight. From this, that the law is a command, and a command consistseth in declaration or manifestation of the will of him that commandeth, by voice, writing, or some other sufficient argument of the same, we may understand that the command of the commonwealth is law only to those that have means to take notice of it. Over natural fools, children, or madmen, 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 authorize the actions of any sovereign, as they must do that make themselves a commonwealth. And as those from whom nature or accident hath taken away the notice of all laws in general, 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 signs be sufficient for the knowledge of what is the law, that is to say, what is the will of the sovereign, as well in monarchies as in other forms of government. And first, if it be a law that obliges all the subjects without exception, and is not written, nor otherwise published in any such places as they may take notice thereof, it is a law of nature. For whatever men are to take knowledge of, for law, not upon other men's 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 laws 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 thyself. 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 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 civil but natural. For example, if the sovereign employ a public minister without written instructions what to do, 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 sovereign, which, being always understood to be equity, he is bound to it by the law of nature, or if an ambassador, he is, in all things, not contained in his written instructions, to take for instruction that which reason dictates to be most conducing to his sovereign's interest, and so of all other ministers of the sovereignty, public and private. All which instructions of nature reason may be comprehended under one name of fidelity, which is a branch of natural justice. The law of nature accepted, it belonged to the essence of all other laws, 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 sovereign authority. For the will of another cannot be understood by his own word, or act, or by conjecture taken from his scope and purpose, which in the person of the commonwealth is to be supposed always consonant to equity and reason. And in ancient times, before letters were in common use, the laws were many times put into verse, that the rude people, taking pleasure in singing or reciting them, might the more easily retain them in memory. And for the same reason Solomon advisedeth a man to bind the ten commandments upon his ten fingers, Proverbs 7.3. And for the law which Moses gave to the people of Israel at the renewing of the Covenant, he bideth 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 ride it upon the posts and doors of their houses, Deuteronomy 1119, and to assemble the people, man, woman, and child, to hear it read, Deuteronomy 3112. Nor is it enough the law be written and published, but also that there be manifest signs that it precedeth from the will of the sovereign. For private men, when they have or think they have, force enough to secure their unjust designs, and convoy them safely to their ambitious ends, may publish for laws what they please, without or against the legislative authority. There is therefore requisite, not only a declaration of the law, but also sufficient signs of the author and authority. The author or legislator is supposed, in every commonwealth, to be evident, because he is the sovereign, 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 commonwealth is worn out, they do not consider by whose power they used to be defended against their enemies, and to have their industry protected, and to be righted when injury has done them, yet because no man that considers can make question of it, no excuse can be derived from the ignorance of where the sovereignty is placed. And it is a dictate of natural 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 sovereign, no man, but by his own fault, but soever evil men suggest, can make any doubt. The difficulty consistseth in the evidence of the authority derived from him, the removing whereof dependeth on the knowledge of the public registers, public councils, public ministers, and public seals, by which all laws are sufficiently verified. Verified I say, not authorized, for the verification is but the testimony and record, not the authority of the law, which consistseth in the command of the sovereign only. 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 cognizance of such causes, is a sufficient verification of the law of nature in that individual case. For though the advice of one that professeth the study of the law be useful for the avoiding of contention, yet it is but advice. Because the judge must tell men what is law, upon the hearing of the controversy. 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 informed, before he do such injury, or commit the crime, whether it be an injury or not. Nay, he ought to do so, for when a man doubts whether the act he goeth about be just or unjust, and may inform himself if he will, the doing is unlawful. In like manner he that supposes hath himself injured, in a case determined by the written law, which he may by himself or others see and consider, if he complain before he consults with the law, he does unjustly, and betrayeth the disposition, rather to vex other men, than to demand his own rights. If the question be of obedience to a public officer, to have seen his commission with the public seal, and to heard it read, or have had the means to be informed of it, if a man would, is a sufficient veracity of his authority. For every man is obliged to do his best endeavour to inform himself of all written laws that may concern his own future actions. The legislature known, and the laws either by writing or by the light of nature sufficiently published, there wanteth yet another very material circumstance to make them obligatory. For it is not the letter, but the intendment, or meaning, that is to say, the authentic interpretation of the law, which is the sense of the legislature, in which the nature of the law consistseth, and therefore the interpretation of all laws dependeth on the authority sovereign, and the interpreters can be none but those which the sovereign, to whom only the subject of with obedience shall appoint. For else, by the craft of an interpreter, the law may be made to bear a sense contrary to that of the sovereign, by which means the interpreter becomes the legislature. All laws, written and unwritten, have need of interpretation. The unwritten law of nature, though it be easy to such without partiality and passion to make use of their natural 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 laws, they be short, are easily misinterpreted, for the diverse significations of a word or two. If long they be more obscure by the diverse significations of many words. Then so much as no written law, delivered in few or many words, can be well understood without a perfect understanding of the final causes for which the law was made. The knowledge of which final causes is in the legislator. To him, therefore, there cannot be any knot in the law insoluble, either by finding out the ends to undo it, 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 do. The interpretation of the laws of nature in a commonwealth depended thnot on the books of moral philosophy. The authority of writers, without the authority of the commonwealth, maketh not their opinions law, be they never so true. That which I have written in this treatise concerning the moral virtues, and of their necessity for their procuring and maintaining peace, though it be evident truth, is not therefore presently law, but because in all commonwells in the world it is a part of the civil law. For though it be naturally reasonable, yet it is by the sovereign power that it is law, otherwise it were a great error to call the laws of nature unwritten law, whereof we see so many volumes published, and in them so many contradictions of one another and of themselves. The interpretation of the law of nature is the sentence of the judge constituted by the sovereign authority to hear 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 whether the demand of the party be consonant to nature reason and equity, and the sentence he giveth is therefore the interpretation of the law of nature, which interpretation is authentic, not because it is his private sentence, but because he giveth it by the authority of the sovereign, whereby it becomes the sovereign sentence, which is law for that time to the party's pleading. But because there is no judge subordinate, nor sovereign, but may err in a judgment equity, if afterward in another light case he find it more consonant to equity to give a contrary sentence, he is obliged to do it. No man's 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 be given by authority of the sovereign, if he know and allow it, in such laws as are mutable, be a constitution of the new law, in cases in which every little circumstance is the same, such as are the laws of nature, they are no laws to the same or other judges in the light cases for ever after. Princes succeed one another, and one judge passeth, another cometh, nay, heaven and earth shall pass, but not one tiddle of the law of nature shall pass, for it is the eternal law of God. Therefore all the sentences of precedent judges that have ever been cannot altogether make a law contrary to natural 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 natural design. For example's sake, it is against the law of nature to punish the innocent, and innocent is he that acquitteth himself judicially, and is acknowledged for innocent by the judge. Put the case now that a man is accused of a capital crime, and seeing the power of malice of some enemy, and the frequent corruption and partiality of judges, runneth away for fear of the event, and afterwards is taken and brought to a legal trial, and maketh it sufficiently appear he was not guilty of the crime, and being thereof acquitted is nevertheless 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 sentence of precedent judges that had done the same. For he that judged at first judged unjustly, and no injustice can be a pattern of judgment to succeeding judges. A written law may forbid innocent men to fly, and they may be punished for flying, but that flying for fear of injury should be taken for presumption of guilt, and after a man is already absolved of the crime judicially is contrary to the nature of a presumption, which hath no place after judgment given. Yet this is set down by a great lawyer for the common law of England. If a man, sayeth he, that is innocent, be accused of felony, and for fear flyeth for the same, albeit he judicially acquitted himself of the felony, yet if it be found that he fled for the felony, he shall, notwithstanding his innocencey, forfeit all his goods, chattels, debts, and duties. For as to the forfeiture of them the law will admit no proof against the presumption in law grounded upon his flight. Here you see an innocent man, judicially acquitted, notwithstanding his innocencey, when no written law forbade him to fly, after his acquittal, 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 capital, the sentence ought to have been capital. The presumption were not of the fact, for what, then, ought to you lose his goods. This therefore is no law of England, nor is the condemnation grounded upon a presumption of law, but on the presumption of judges. It is also against law to say that no proof shall be admitted against a presumption of law. For all judges, sovereign and subordinate, if they refuse to hear a proof, refuse to do justice. For though the sentence be just, yet the judges that condemn without hearing the proofs 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 judgments or examples he shall pretend to follow. There be other things of this nature, wherein men's judgments have been perverted by trusting to precedence, but this is enough to show that though the sentence of the judge be a law to the party pleading, yet it is no law any judge that shall succeed him in that office. In like manner, when question is of the meaning of written laws, he is not the interpreter of them that writeeth a commentary upon them. For commentaries are commonly more subject to scaval than the text, and therefore need other commentaries, and so there will be no end of interpretation. And therefore, unless there be an interpreter authorized by the sovereign, from which the subordinate judges are not to recede, the interpreter can be no other than the ordinary judges, in the same manner as they are in cases of the unwritten law, and their sentences are to be taken by them that plead for laws in that particular case, but not bind other judges in light cases to give judgments. For a judge may err in the interpretation even of written laws, but no error of a subordinate judge can change the law, which is the general sentence of the sovereign. In written laws 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, it is well distinguished. For the significations of almost all are either in themselves or in the metaphorical use of them, ambiguous, and may be drawn in argument to make many senses, but there is only one sense of the law. But if by the letter be meant the literal sense, then the letter and the sentence or intention of the law is all one. For the literal sense is that which the legislator intended should by the letter of the law be signified. Now the intention of the legislator is always supposed to be equity, for if it were a great contumely for a judge to think otherwise of the sovereign. He ought, therefore, if the word of the law do not fully authorize a reasonable sentence, to supply it with the law of nature, or if the case be difficult to respite judgment till he have received more ample authority. For example, a written law ordained 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 special 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 falsely of a fact which the judge himself saw 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 sovereign that another be made judge and himself witness. So that the incomodity that follows the bare words of a written law may lead him to the intention of the law, thereby to interpret the same be better, though no incomodity can warrant a sentence against the law. For every judge of right and wrong is not a judge of what is commodious or incomodious to the commonwealth. 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 laws. 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 sovereign, alleged in the pleading, or declared to him by some that have authority from the sovereign power to declare them, and need not take care beforehand what he shall judge, for it shall be given him what he shall say concerning the fact by witnesses, and what he shall say in point of law from those that shall in their pleading show it, and by authority interpreted upon the place. The lords of parliament in England were judges, and most difficult cases have been heard and determined by them. Yet few of them were much first in the study of the laws, 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 trials of right, twelve men of the common people are judges and give sentence, not only of the fact, but of the right, and pronounced simply for the complainant or for the defendant. That is to say, are judges not only of the fact, but also of the right, and in a question of crime not only 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 inform them of it, in the particular case they are to judge of. But yet, if they judge not according to he that tells them, they are not subject thereby to any penalty, unless it be made appear that they did it against their consciences, or had been corrupted by reward. The things that make a good judge or good interpreter of the laws are, first, a right understanding of that principle law of nature called equity, which, depending not on the reading of other men's writings, but on the goodness of a man's own natural reason and meditation, is presumed to be in those most that had most leisure, and had the most inclination to meditate thereon. Secondly, contempt of unnecessary riches and performance. Thirdly, to be able in judgment to divest himself of all fear, hatred, anger, love, and compassion. Fourthly, and lastly, patience to hear, diligent attention in hearing, and memory to retain, digest, and apply what he had heard. The difference and division of the laws has been made in diverse manners, according to the different methods of those men that have written of them. For it is a thing that dependeth on nature, but on the scope of the writer, and is subservient to every man's proper method. In the institutions of Justinian we find seven sorts of civil laws. One. The edicts, constitutions, and epistles of prince, that is, of the emperor, because the whole power of the people was in him. Like these are the proclamations of the kings of England. Two. The decrees of the whole people of Rome, comprehending the senate, when they were put to the question by the senate. These were laws at first by the virtue of the sovereign power residing in the people, and such of them as by the emperors were not abrogated, remained laws by the imperial authority, for all laws that bind are understood to be laws by his authority that has power to repeal them. Somewhat like these laws are the acts of parliament in England. Three. 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 emperors, remained laws by the authority imperial. Like to these were the orders of the House of Commons of England. Four. 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 emperor that men should consult the senate instead of the people, and these have some resemblance with the acts of council. Five. The edicts of praetors, and in some cases of the adeles, such as are the chief justices in the courts of England. Six. Sponsa prudentum, which were the sentences and opinions of those lawyers to whom the emperor 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 judgment were obliged by the constitutions of the emperor 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 jurists consultee, of whom the judges, who are either the lords or twelve men of the country, are in point of law to ask advice. Seven. Also unwritten customs, which in their own nature are an imitation of law by the tacit consent of the emperor, in case they be not contrary to the law of nature, are very laws. Another division of laws is into natural and positive. Natural are those which have been laws from all eternity, and are called not only natural, but also moral laws, consisting in the moral virtues, 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 from eternity, but have been made laws by the will of those that have had the sovereign power over others, and are either written or made known to men by some other argument of the will of their legislator. Again of positive laws some are human, some divine, and of human positive laws 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 acquires and holdseth a propriety in lands or goods, and a right or liberty of action, and these speak to all the subjects. Natural 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, nevertheless the command is not addressed to the delinquent, who cannot be supposed will faithfully punish himself, but to public ministers appointed to see the penalty executed. And these penal laws are, for the most part, written together with the law's distributive, and are sometimes called judgments. For all laws are general judgments, or sentences of the legislator, as also every particular judgment is a law to him whose case is judged. Divine positive laws, for natural laws, being eternal and universal, are all defined. Are those which, being the commandments of God, not from all eternity, nor universally addressed to all men, but only to a certain people or to certain persons, are declared for such by those whom God hath authorized to declare them. But this authority of man to declare what be these positive of God, how can it be known? God may command a man, by a supernatural way, to deliver laws to other men. But because it is of the essence of law that he who is to be obliged to be assured of the authority of him that declareeth it, which we cannot naturally take notice to be from God, how can a man without supernatural revelations be assured of the revelation received by the declarer? And how can he be bound to obey him? For the first question, how a man can be assured of the revelation of another, without a revelation, particularly to himself, it is evidently impossible. For though a man may be induced to believe such revelation, from the miracles they see him do, or from seeing the extraordinary sanctity of his life, or from seeing the extraordinary wisdom, or extraordinary felicity of his actions, all which are marks of God's extraordinary favor, yet they are not assured evidences of special revelation. Miracles are marvelous works, but that which is marvelous 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 natural and ordinary causes. And therefore no man can infallibly know by natural reason that another has had a supernatural revelation of God's will, but only a belief. Everyone, as the signs thereof shall appear greater or lesser, affirmer or weaker belief. But for the second, how he can be bound to obey him, it is not so hard. For if the law declared be not against the law of nature, which is undoubtedly God's 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 men's belief and interior cojections are not subject to the commands, but only to the operation of God, ordinary or extraordinary. Faith of supernatural law is not a fulfilling, but only an assenting to the same, and not a duty that we exhibit to God, but a gift which God freely giveth to whom he pleaseth, as also unbelief is not a breach of any of his laws, but a rejection of them all, except the law's natural. But this that I say will be made yet clearer by, the examples and testimonies concerning this point in holy scripture. The covenant God made with Abraham in a supernatural manner was thus, This is the covenant which thou shalt observe between me and thee and thy seed after thee. Genesis 17.10. Abraham's seed had not this revelation, nor were yet in being. But they are a party to the covenant, and bound to obey what Abraham should declare to them for God's law, which they could not be but in virtue of the obedience which they owed their parents, who if they be subject to no other earthly power, as here in the case of Abraham, have sovereign power over their children and servants. Again, 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 righteousness and judgment, it is manifest the obedience of his family, who had no revelation, depended on their former obligation to obey their sovereign. At Mount Sinai Moses only went up to God, the people were forbidden to approach on pain of death, yet were they bound to obey all that Moses declared to them for God's law. Upon what ground, but on this submission of their own, speak thou to us, and we will hear thee, but let not God speak to us lest we die. By which two places it sufficiently appeareth that in a commonwealth 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 commonwealth. For if men were at liberty to take for God's commandments their own dreams and fancies, or the dreams and fancies of private men, scarce two men would agree upon what is God's and yet in respect of them every man would despise the commandments of the commonwealth. I conclude, therefore, that in all things, not contrary to the moral 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 laws of the commonwealth. Which also is evident to any man's reason. For whatsoever is not against the law of nature may be made law in the name of them that have the sovereign power. There is no reason men should be the less obliged by it when it is propounded in the name of God. Besides, there is no place in the world where men are permitted to pretend other commandments of God are declared for such by the commonwealth. 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 commonwealth, it is equity, which is the law of nature and, therefore, an eternal law of God, that every man equally enjoy his liberty. There is also another distinction of laws into fundamental and not fundamental, but I could never see in any author what a fundamental law signifyeth. Nevertheless, one may very reasonably distinguish laws in that matter. For a fundamental law in every commonwealth is that which, being taken away, the commonwealth faileth and is utterly dissolved, as a building whose foundation is destroyed. And therefore a fundamental law is that by which subjects are bound to uphold whatsoever power is given to the sovereign, whether a monarch or a sovereign assembly, without which the commonwealth cannot stand, such as the power of war and peace, of judicature, of election of officers, and of doing whatsoever he shall think necessary for the public good. Not fundamental is that the abrogating whereof draweth not with it the dissolution of the commonwealth, such as are the laws concerning controversies between subject and subject, thus much of the division of laws. I find the words lex, civillus, and jus, civil, that is to say, law and right civil, promiscuously used for the same thing, even in the most learned authors, which nevertheless ought not to be so. Our right is liberty, namely that liberty which the civil law leaves us, but civil 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 himself by his own strength, and to invade a suspected neighbor by way of prevention, but the civil law takes away that liberty in all cases where the protection of the law may be safely stayed for, in so much as lex and jus are different as obligation and liberty. Likewise, laws and charters are taken promiscuously for the same thing. Yet charters are donations of the sovereign, and not laws, but exemptions from law. The phase of a law is jubio, injungo, I command and enjoin. The phrase of a charter is dede, concesi, 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 subject of a commonwealth. A liberty or charter is only to one man or some one part of the people. For to say all the people of a commonwealth have liberty in any case, whatsoever is to say that, in such case, there have been no law made, or else having been made is now abrogated. End of chapter 26, read by Cibela Denton. Chapter 27 of Leviathan by Thomas Hobbes. This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit LibriVox.org, recording by Smokey B. Leviathan by Thomas Hobbes. Chapter 27 of Crimes, Excuses, and Extenuations. A sin is not only a transgression of law, but also any contempt of the legislator. For such contempt is a breach of all his laws at once, and therefore may consist not only in the commission of a fact, or in the speaking of words by the laws forbidden, or in the omission of what the law commandeth, but also in the intention or purpose to transgress. For the purpose to break the law is some degree of contempt of him to whom it belonged to see it executed. To be delighted in the imagination only of being possessed of another man's goods, servants, or wife, without any intention to take them from him by force or fraud, is no breach of the law that saith, Thou shalt not covet, nor is the pleasure a man may have in imagining or dreaming of the death of him from whose life he expecteth nothing but damage and displeasure a sin. But the resolving to put some act in execution that tendeth there too. For to be pleased in the fiction of that which would please a man, if it were real, is a passion so adherent to the nature both of man and every other living creature, as to make it a sin or to make sin 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 sins. But I confess it is savored to err on that hand than on the other. A crime is a sin consisting in the committing by deed or word of that which the law forbideth, or the omission of what it hath commanded, so that every crime is a sin, but not every sin a crime. To intend to steal or kill is a sin, though it never appear in word or fact, for God that seeth the thought of man can lay it to his charge, but till it appear by something done, or said, by which the intention may be argued by a human judge, it hath not the name of crime, which distinction the Greeks observed in the word amartima and eglikima, or atei, whereof the former, which is translated sin, signifyeth any swerving from the law whatsoever, but the two latter, which are translated crime, signify that sin only whereof one man may accuse another, but of intentions which never appear by any outward act, there is no place for human accusation. In like manner the latins by pecatum, which is sin, signify all manner of deviation from the law, but by crimin, which word they derive from sereno, which signifies to perceive, they mean only such sins as may be made appear before a judge, and therefore are not mere intentions. From this relation of sin to the law, and of crime to the civil law, may be inferred first that where law ceaseth, sin ceaseth, but because the law of nature is eternal, violation of covenants, ingratitude, arrogance, and all facts contrary to any moral virtue, can never cease to be a sin. Secondly, that the civil 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 only by his own conscience, and cleared by the uprightness of his own intention. When therefore his intention is right, his fact is no sin. If otherwise his fact is sin, but not crime. Thirdly, that when the sovereign power ceaseth, crime also ceaseth. For where there is no such power, there is no protection to be had from the law, and therefore everyone may protect himself by his own power. For no man in the institution of sovereign power can be supposed to give away the right of preserving his own body. For the safety were of all sovereignty was ordained. But this is to be understood only by those that have not themselves contributed to the taking away of the power that protected them. For that was a crime from the beginning. The source of every crime is some defect of the understanding, or some error in reasoning, or some sudden force of the passions. Defect in the understanding is ignorance in reasoning, erroneous opinion. Again, ignorance is of three sorts of the law, and of the sovereign, 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 himself. Therefore, into what placesoever a man shall come, if he do anything contrary to that law, it is a crime. If a man come from the Indies hither and persuade men here to receive a new religion, or teach them anything that tendeth to disobedience of the laws of this country, though he be never so well persuaded of the truth of what he teacheth, he commits a crime, and may be justly punished for the same. Not only because his doctrine is false, but also because he does that which he would not approve in another. Namely, that coming from hence, he should endeavor to alter the religion there. But ignorance of the civil law shall excuse a man in a strange country till it be declared to him, because till then no civil law is binding. In the like manner, if the civil law of a man's 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 civil law excuseth not. Ignorance of the sovereign power of the place of a man's 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 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 an action accepteth all the known consequences of it. But punishment is a known consequence of the violation of laws in every commonwealth, 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. But when a penalty is either annexed to the crime in the law itself, 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 deter men from the action is an invitement to it. Because when men compare the benefit of their own 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 formally determined, or more than others were punished for the same crime, it is the law that tempted and deceiveth them. 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 forbids a fact is made before the fact be done, yet he that doth the fact is liable to the penalty ordained after, in case no lesser penalty were made known before, neither by writing nor by example, for the reason immediately before alleged. From defect in reasoning, that is to say, from error, men are prone to violate the laws in three ways. First, by presumption of false principles, as when men from having observed how in all places and in all ages, unjust actions have been authorized by the force and victories of those who have committed them, and that potent men breaking through the cobweb laws of their country, the weaker sort, and those that have failed and their enterprises have been esteemed the only criminals, have therefore 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 itself can be a crime, but must be made so, not by the law, but by the success of them that commit it, and the same fact be virtuous or vicious, fortune pleaseth, so that what Marius makes a crime, so shall make meritorious, and Caesar, the same law standing, turn again into a crime to the perpetual disturbance of the peace of the commonwealth. Secondly, by false teachers that either misinterpret the law of nature, making it thereby repugnant to the law civil, or by teaching for laws such doctrines of their own, or traditions of former times, as are inconsistent with the duty of a subject. Thirdly, by erroneous inferences from true principles, which happens commonly to men that are hasty and precipitate 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 only common experience and a good natural wit, whereof no man thinks himself unprovided. Whereas the knowledge of right and wrong, which is no less 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 pretended to the administration of his own private business, much less in them that undertake a public charge, because they pretend to the reason upon the want whereof they would ground their excuse. Of the passions that most frequently are the causes of crime, one is vain glory, or a foolish overrating of their own worth, as if difference of worth were an effect of their wit, or riches, or blood, or some other natural quality not depending on the will of those that have the sovereign authority. From whence precedeth a presumption that the punishments ordained by the laws and extended generally to all subjects ought not to be inflicted on them with the same rigor they are inflicted on poor, obscure, and simple men, comprehended under the name of the vulgar? Therefore it happeneth commonly that such as value themselves by the greatness of their wealth, adventure on crimes, upon hope of escaping punishment by corrupting public justice, or obtaining pardon by money or other rewards. And that such as have multitude of potent kindred and popular men that have gained reputation amongst the multitude, take courage to violate the laws from a hope of oppressing the power to whom it belongs to put them in execution. And that such as have a great and false opinion of their own wisdom, take upon them to reprehend the actions and call in question the authority of them that govern, and so to unsettle the laws with their public discourse, as that nothing shall be a crime but what their own designs 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 neighbors, because they think their designs are too subtle to be perceived. These, I say, are effects of a false presumption of their own wisdom, for of them that are the first movers in the disturbance of commonwealth, which can never happen without a civil war, very few are left alive long enough to see their new designs established, so that the benefit of their crimes redoundeth to posterity and such as would least have wished it, which argues they were not so wise as they thought they were, and those that deceive upon hope of not being observed do commonly deceive themselves, the darkness in which they believe they lie hidden being nothing else but their own blindness, and are no wiser than children that think all hid by hiding their own eyes, and generally all vain glorious men, unless they be with all 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. As for the passions of hate, lust, ambition, and covetousness, what crimes they are apt to produce is so obvious to every man's 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 hindered but by extraordinary use of reason, or a constant severity in punishing them. For in those things men hate, they find a continual and unavoidable molestation, whereby either a man's patience must be everlasting, or he must be eased by removing the power of that which molesteth him. The former is difficult, the latter is many times impossible without some violation of the law. Ambition and covetousness 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 suffices to weigh down the apprehension of all easy or uncertain punishments, of all passions that which inclineth men leased to break the laws is fear. Nay, accepting some generous natures, it is the only thing, when there is appearance of profit or pleasure by breaking the laws, that makes men keep them. And yet in many cases a crime may be committed through fear, for not every fear justifies the action it produces, but the fear only of corporeal 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 assault of him. If he wound him to death, this is no crime, because no man is supposed at the making of a commonwealth to have abandoned the defense of his life or limbs, where the law cannot arrive time enough to be his assistance, but to kill a man because from his actions or his threatenings I may argue he will kill me when he can, seeing I have time and means to demand protection from the sovereign power, is a crime. Again, a man receives words of disgrace, or some little injuries, for which they that made the laws had assigned no punishment, nor thought it worthy of a man that hath the use of reason to take notice of, and is afraid unless he revenge it he shall fall into contempt and consequently be obnoxious to the like injuries from others, and to avoid this breaks the law and protects himself for the future by the terror of his private revenge. This is a crime for the hurt is not corporeal, but fantastical, and though in this corner of the world made sensible by a custom 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 emitting diverse things which nevertheless to do or omit is contrary to the laws, and that which is done so or omitted is not to be excused by this fear but is a crime. Four, as I have shown before in the second chapter, dreams be naturally but the fancies remaining in sleep after the impressions our senses had formally received waking, and when men are by any accident unassured they have slept seem to be real visions, and therefore he that presumes to break the law upon his own or another's dream or pretended vision or upon other fancy of the power of invisible spirits than is permitted by the commonwealth leaveeth the law of nature which is a certain offense and followeth the imagery of his own or another private man's brain which he can never know whether it signifies anything or nothing nor whether he that tells his dreams say true or lie which if every private man should have leave to do so as they must by the law of nature if anyone have it there could no law be made to hold and so all commonwealth would be dissolved from these different sources of crime it appears already that all crimes are not as the stoics of old time maintained of the same alloy there is place not only for excuse by which that which seemed the crime is proved to be none at all but also for extinuation by which the crime that seemed great is made less for though all crimes do equally deserve the name of injustice as all deviation from a straight line is equally crookedness which the stoics 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 stoics not observing held it as great a crime to kill a hen against the law as to kill one's father that which totally excuses 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 that 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 excuses for the law where a man has no means to inform himself is not obligatory but the want of diligence to inquire 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 laws of nature because they are known by the reason he pretends to only children and mad men are excused from offenses against the law natural where 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 die 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 terror of present death be compelled to do 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 do it not i die presently if i do it i die afterwards therefore by doing it there is a time of life gained nature therefore compels him to the fact when a man is destitute of food or other thing necessary for his life and cannot preserve himself any other way but by some fact against the law as if in a great famine he takes the food by force or stealth which he cannot obtain for money nor charity or in the defense of his life snatch away another man's sword he is totally excused for the reason next before alleged 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 both the author and actor are criminals from hence it followeth that when that man or assembly that hath the sovereign power command if 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 himself because he is the author and what cannot justly be condemned by the sovereign cannot justly be punished by any other besides when the sovereign commandeth anything 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 sovereign power disclaim any right essential to the sovereignty whereby they're accrued to the subject any liberty inconsistent with the sovereign power that is to say with the very being of a commonwealth if the subject shall refuse to obey the command and anything contrary to the liberty granted this is nevertheless a sin and contrary to the duty of the subject for he to take notice of what is inconsistent with the sovereignty because it was erected by his own consent and for his own defense and that such liberty as is inconsistent with it was granted through ignorance of the evil consequence thereof but if he not only disobey but also resists a public 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 diverse scales and measured first by the malignity of the source or cause secondly by the contagion of the example thirdly by the mischief of the effect and fourthly by the concurrence of times places and persons 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 wint's springeth at all times and upon all temptations a contempt of all laws whereas in the latter case the apprehension of danger that makes a man fly renders him more obedient for the future a crime known to be so is greater than the same crime proceeding from a false persuasion that it is lawful for he that committed it against his own conscience presumeth on his force or other power which encourages him to commit the same again but he that duffet by error after the error shown him is conformable to the law he whose error proceeds from the authority of a teacher or an interpreter of the law publicly authorized is not so faulty as he whose error proceedeth from a peremptory pursuit of his own principles and reasoning for what is taught by one that teaches by public authority the commonwealth teaches and hath a resemblance of law till the same authority controleth it and in all crimes that contain not in them a denial of the sovereign power nor are against an evident law excuseth totally whereas he that grounded his actions on his private judgment ought according to the rectitude or error thereof to stand or fall the same fact if it have been constantly punished in other men is a greater crime than if there have been many precedent examples of impunity where those examples are so many hopes of impunity given by the sovereign himself and because he which furnishes a man with such a hope and presumption of mercy as encourages them to offend hath his part in the offense he cannot reasonably charge the offender with the whole a crime arising from a sudden passion is not so great as when the same arises from a long meditation for in the former case there is a place for extinuation in the common infirmity of human nature but he that doth it with premeditation has used circumspection and cast his eye on the law on the punishment and on the consequence thereof to human society all which in committing the crime he hath condemned and postponed to his own appetite but there is no suddenness of passion sufficient for a total 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 rectify the irregularity of his passions where the law is publicly 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 inquire of it with difficulty uncertainty and interruption of their callings and to be informed by private men for in this case part of the fault is just charged upon common infirmity but in the former there is apparent negligence which is not without some contempt of the sovereign power those facts which the law expressly condemneth but the lawmaker by other manifest signs of his will tacitly approveeth are less crimes than the same facts condemned both by the law and the lawmaker foreseeing the will of the lawmaker is law there appear in this case two contradictory laws which would totally excuse if men were bound to take notice of the sovereign's approbation by other arguments than are expressed by his command but because there are punishments consequence not only 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 duals the punishment is made capital on the contrary part he that refuses dual is subject to contempt and scorn without remedy and sometimes by the sovereign himself thought unworthy to have any charge or preferment in war if there upon he accept dual considering all men lawfully endeavor to obtain the good opinion of them that have the sovereign 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 governors not to countenance anything obliquely which directly they forbid the examples of princes to those that see them are and ever have been more potent to govern their actions than the laws themselves and though it be our duty to do not what they do but what they say yet will that duty never be performed till it please God to give men an extraordinary and supernatural grace to follow that precept again if we compare crimes by the mischief of their effects first the same fact when it redounds to the damage of many is greater than when it redounds to the hurt of few and therefore when a fact hurteth not only in the present but also by example in the future it is a greater crime than if it hurts only in the present for the former is a fertile crime and multiplies to the hurt of many the latter is barren to maintain doctrines contrary to the religion established in the commonwealth is a greater fault in an authorized preacher than in a private person so also is it to live profanely incontinently or do any irreligious act whatsoever likewise in a professor of the law to maintain any point or do any act that tendeth to the weakening of the sovereign power is a greater crime than in another man also in a man that hath such reputation for wisdom as that his councils are followed or his actions imitated by many his fact against the law is a greater crime than the same fact in another for such men not only commit crime but teach it for law to all other men and generally all crimes are the greater by the scandal they give that is to say by becoming stumbling blocks to the weak that look not so much upon the way they go in as upon the light that other men carry before them also facts of hostility against the present state of the commonwealth are greater crimes than the same acts done to private men for the damage extends itself to all such are the betraying of the strengths or revealing of the secrets of the commonwealth to an enemy also all attempts upon the representative of the commonwealth be it a monarch or an assembly and all endeavors by a word or deed to diminish the authority of the same either in the present time or in succession which crimes the latins understand by criminal lacy majestitus and consist in design or act contrary to a fundamental law likewise those crimes which render judgments of no effect are greater crimes than injuries done to one or a few persons as to receive money to give false judgment or testimony is a greater crime than otherwise to deceive a man of the like or a greater some because not only he has wrong that falls by such judgments but all judgments are rendered useless an occasion minister to force and private revenges also robbery and depiculation of the public treasury or revenues is a greater crime than the robbing or defrauding of a private man because to rob the public is to rob many at once also the counterfeit usurpation of public ministry the counterfeiting of public seals or public coin then counterfeiting of a private man's person or his seal because the fraud thereof extended to the damage of many of facts against the law done to private men the greater crime is that where the damage in the common opinion of men is most sensible and therefore to kill against the law is a greater crime than any other injury life preserved and to kill with torment greater than simply to kill and mutilation of a limb greater than the spoiling a man of his goods and the spoiling a man of his goods by terror of death or wounds then by clandestine surruption and by clandestine surruption then by consent fraudulently obtained and the violation of chastity by force greater than by flattery and of a woman married then of a woman not married for all these things are commonly so valued though some men are more and some less sensible of the same offense but the law regardless not the particular but the general inclination of mankind and therefore the offense men take from contumely in words or gesture when they produce no other harm than the present grief of him that is reproached has been neglected in the laws of the Greeks Romans and other both ancient and modern commonwealths supposing the true cause of such grief to consist not in the contumely which takes no hold upon men conscious of their own virtue but in the pusillanimity of him that is offended by it also a crime against a private man is much aggravated by the person time and place for to kill one's parent is a greater crime than to kill another for the parent ought to have the honor of a sovereign though he have 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 extinction 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 there upon called public judicia publica pleas of the crown or private pleas and 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 end of chapter 27 chapter 28 of Leviathan this is a LibriVox recording all LibriVox recordings are in the public domain for more information or to volunteer please visit LibriVox.org Leviathan by Thomas Hobbes chapter 28 of punishments and rewards a punishment is an evil inflicted by public authority on him that has done or omitted that which is judged by the same authority to be a transgression of the law to the end that the will of men may thereby the better be disposed to obedience before I infer anything from this definition there is a question to be answered of much importance which is by what door the right or authority of punishing in any case came in for by that which has been said before no man is supposed to 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 obliged 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 represented hath to punish is not grounded on any concession or gift of the subjects but I have also shown formerly that before the institution of commonwealth every man had a right to everything and to do whatsoever he thought necessary to his own preservation subduing hurting or killing any man in order there and to 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 accepting the limits set him by natural law as entire as in the condition of mere nature and of war of every one against his neighbor 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 favor is not a punishment because no new evil is thereby on any man inflicted he is only left in the estate he was in before thirdly that the evil inflicted by public authority without precedent public condemnation is to be styled by the name of punishment but of a hostile act because the fact for which a man is punished ought first to be judged by public authority to be a transgression of the law fourthly that the evil inflicted by usurped power and judges without authority from the sovereign is not punishment but an act of hostility because the acts of power usurped have not for author the person condemned and therefore are not acts of public authority fifthly that all evil which is inflicted without intention or possibility of disposing the delinquent or by his example other men to obey the laws is not punishment but an act of hostility because without such an end no hurt done is contained under that name sixthly whereas to certain actions there may be a next by nature diverse hurtful consequences as when a man in assaulting another is himself slain or wounded or when he falleth into sickness by the doing of some unlawful act such hurt though in respect of god who is the author of nature it may be said to be inflicted and therefore a punishment divine yet it is not contained in the name of punishment in respect to men because it is not inflicted by the authority of man seventhly if the harm inflicted be less than the benefit of contentment that naturally follow with the crime committed that harm is not within the definition and is rather the price or redemption than the punishment of a crime because it is of the nature of punishment to have for end the disposing of men to obey the law which end if it be less than the benefit of the transgression it attaineth not but work of the contrary effect eighthly if a punishment be determined and described in the law itself and after the crime committed there be a greater punishment inflicted the excess is not punishment but an act of hostility for seeing the aim of punishment is not a revenge but terror and the terror of a great punishment unknown is taken away by the declaration of a less the unexpected addition is no part of the punishment but where there is no punishment at all determined by the law there whatsoever is inflicted half the nature of punishment for he that goes about the violation of a law wherein no penalty is determined expecteth an indeterminate that is to say an arbitrary punishment ninthly harm inflicted for a fact done before there was a law that forbade it is not punishment but an act of hostility for before the law there is no transgression of the law but punishment supposes 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 tenthly hurt inflicted on the representative of the commonwealth is not punishment but an act of hostility because it is the nature of punishment to be inflicted by public authority which is the authority only of the representative itself lastly harm inflicted upon one that is a declared enemy falls not under the name of punishment because seeing that 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 fall with that if a subject shall by fact or word wittingly and deliberately deny the authority of the representative of the commonwealth whatsoever penalty have 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 have been ordained and therefore suffers as an enemy of the commonwealth that is according to the will of the representative for the punishment set down in the law are to subjects not to enemies such as are they that having been by their own act subjects deliberately revolting deny the sovereign power the first and most general distribution of punishments is into divine and human of the former I shall have occasion to speak in a more convenient place hereafter human are those punishments that be inflicted by the commandment of man and are either corporal or pecuniary or ignominy or imprisonment or exile or mixed of these corporal punishment is that which is inflicted on the body directly and according to the intention of him that inflicted it such as our stripes or wounds or deprivation of such pleasures of the body as were before lawfully enjoyed and of these some be capital some less than capital capital is the inflection of death and that either simply or with torment less than capital are stripes wounds chains and any other corporal pain not in its own nature mortal for if upon the inflection of a punishment death follow not in the intention of the inflictor the punishment is not to be esteemed capital though the harm prove mortal by an accident not to be foreseen in which case death is not inflicted but hastened pecuniary punishment is that which consists of not only in the deprivation of a sum of money but also of lands or any other goods which are usually bought and sold for money and in the case the law that ordain is such a punishment be made with design to gather money from such as shall transgress the same it is not properly a punishment but the price of privilege and exemption from the law which does not absolutely forbid the fact but only to those who are not able to pay the money except where the law is natural or part of religion for in that case it is not an exemption from the law but a transgression of it as where the law exacteth a pecuniary mulked of them that take the name of god in vain the payment of the mulked is not the price of a dispensation to swear but the punishment of the transgression of a law indispensable in like manner if the law impose a sum of money to be paid to him that has been injured this is but a satisfaction for the hurt done him and extinguish at the accusation of the party injured but not the crime of the offender ignominy is the inflection of such evil as is made dishonorable or the deprivation of such good as is made honorable by the commonwealth for there be some things honorable by nature as the effects of courage magnanimity strength wisdom and other abilities of the body and mind others made honorable by the commonwealth as badges titles offices or any other singular mark of the sovereign's favor the former though they may fail by nature or accident cannot be taken away by law and therefore the loss of them is not punishment but the latter may be taken away by the public authority that made them honorable and are properly punishments such are degrading men condemned of their badges titles and offices or declaring them incapable of the like in time to come imprisonment is when a man is by public authority deprived of liberty and may happen from two diverse ends where of one is the safe custody of a man accused the other is the inflicting of pain on a man condemned the former is not a punishment because no man is supposed to be punished before he be judicially heard and declared guilty and therefore whatsoever hurt a man is made to suffer by bonds or restraint before his cause be heard over and above that which is necessary to assure his custody is against the law of nature but the latter is punishment because evil and inflicted by public authority for somewhat that has by the same authority been judged a transgression of the law under this word imprisonment I comprehend all restraint of motion caused by an external obstacle be it a house which is called by the general name of a prison or an island as when men are said to be confined to it or a place where men are set to work as an old-time men have been condemned to quarries and in these times to galleys or be it a chain or any other such impediment exile banishment is when a man is for a crime condemned to depart out of the dominion of the commonwealth or out of a certain part thereof and during a prefixed time or forever not return into it and seemeth not in its own nature without other circumstances to be a punishment but rather an escape or a public commandment to avoid punishment by flight and Cicero says there was never any such punishment ordained in the city of Rome but calls it a refuge of men in danger for if a man banished be nevertheless permitted to enjoy his goods and the revenue of his lands the mere change of air is no punishment nor does it tend to that benefit of the commonwealth for which all punishments are ordained that is to say to the forming of men's wills to the observation of the law but many times to the damage of the commonwealth for a banished man is a lawful enemy of the commonwealth that banished him as being no more a member of the same but if he be with all deprived of his lands or goods then the punishment lieth not in the exile but is to be reckoned amongst punishments pecuniary all punishments of innocent subjects be they great or little are against the law of nature for punishment is only for transgression of the law and therefore there can be no punishment of the innocent it is therefore a violation first of that law of nature which forbiddeth all men in their revenges to look at anything but some future good for there can arrive no good to the commonwealth by punishing the innocent secondly of that which forbiddeth in gratitude for seeing all sovereign power is originally given by the consent of every one of the subjects to the end they should as long as they are obedient be protected thereby the punishment of the innocent is a rendering of evil for good and thirdly of the law that commandeth equity that is to say an equal distribution of justice which in punishing the innocent is not observed but the infliction of what evil so ever on an innocent man that is not a subject if it be for the benefit of the commonwealth and without violation of any former covenant is no breach of the law of nature for all men that are not subjects are either enemies or else they have ceased from being so by some precedent covenants but against enemies whom the commonwealth judges capable to do them hurt it is lawful by the original right of nature to make war where in the sword judges not nor doth the victor make distinction of no saint and innocent as to the time past nor has other respect of mercy than as conduceth to the good of his own people and upon this ground it is that also in subjects who deliberately deny the authority of the commonwealth established the vengeance is lawfully extended not only to the fathers but also to the third and fourth generation not yet in being and consequently innocent of the fact for which they are afflicted because the nature of this offense consists of in the renouncing of subjection which is a relapse into the condition of war commonly called rebellion and they that so offend suffer not as subjects but as enemies for rebellion is but war renewed reward is reward is either by gift or by contract when by contract it is called salary and wages which is benefit due for service performed or promised when of gift it is benefit proceeding from the grace of them that bestow it to encourage or enable men to do them service and therefore when the sovereign of a commonwealth appoint us a salary to any public office he that receiveth it is bound injustice to perform his office otherwise he is bound only in honor to acknowledgement and an endeavor of requital for though men have no lawful remedy when they be commanded to quit their private business to serve the public without reward or salary yet they are not bound there too by the law of nature nor by the institution of the commonwealth unless the service cannot otherwise be done because it is supposed the sovereign may make use of all their means in so much as the most common soldier may demand the wages of his warfare as a debt the benefits which is sovereign bestoweth on a subject for fear of some power and ability he hath to do hurt to the commonwealth are not properly rewards for they are not salaries because there is in this case no contract supposed every man being obliged already not to do the commonwealth disservice nor are they graces because they be extorted by fear which ought not to be incident to the sovereign power but are rather sacrifices which the sovereign considered in his natural person and not in the person of the commonwealth makes for the appeasing of the discontent of him he thinks more potent than himself and encourage not to obedience but on the contrary to the continuance and increasing of further extortion and whereas some salaries are certain and proceed from the public treasury and others uncertain and casual proceeding from the execution of the office for which the salary is ordained the latter is in some cases hurtful to the commonwealth as in the case of judicature for where the benefit of the judges and the ministers of a court of justice arises for the multitude of causes that are brought to their cognizance their must needs follow two inconveniences one is a nourishing of suits for the more suits the greater benefit and another that depends on that which is contention which is about jurisdiction each court drawing to itself as many causes as it can but in offices of execution there are not those inconveniences because their employment cannot be increased by any endeavor of their own and thus much shall suffice for the nature of punishment and reward which are as it were the nerves and tendons that move the limbs and joints of a commonwealth hitherto i have set forth the nature of man whose pride and other passions have compelled him to submit himself to government together with the great power of his governor whom i compared to leviathan taking that comparison out of the two last verses of the one and fortieth of job where god having set forth the great power of leviathan calleth him king of the proud there is nothing saith he on earth to be compared with him he is made so as not to be afraid he seeeth every high thing below him and his king of all the children of pride but because he is mortal and subject to decay as all other earthly creatures are and because there is that in heaven though not on earth that he should stand in fear of and whose laws he ought to obey i shall in the next following chapters speak of his diseases and the causes of his mortality and of what laws of nature he is bound to obey end of chapter 28