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 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 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 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, (whatsoever evil men suggest,) can make any doubt. |Difference between verifying & authorizing.| The difficulty consisteth in the evidence of the authority derived from him; the removing whereof, dependeth on the knowledge of the public registers, public counsels, 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 consisteth 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: it is 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 supposeth 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 bewrayeth a disposition rather to vex other men, than to demand his own right.
If the question be of obedience to a public officer; to have seen his commission, with the public seal, 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 do his best endeavour, to inform himself of all written laws, that may concern his own future actions.
The legislator 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 legislator), in which the nature of the law consisteth; 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 oweth 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 legislator.
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 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 they be short, are easily misinterpreted, from the divers significations of a word, or two: if long, they be more obscure by the divers significations of many words: insomuch 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 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 do.
The interpretation of the laws of nature, in a commonwealth, dependeth not 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 the procuring, and maintaining peace, though it be evident truth, is not therefore presently law; but because in all commonwealths in the world, it is 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 natural 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 authority of the sovereign, whereby it becomes the sovereign’s sentence; which is law for that time, to the parties pleading.
But because there is no judge subordinate, nor sovereign, but may err in a judgment of equity; if afterward in another like 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 given by authority of the sovereign, if he know and allow it, in such laws as are mutable, be a constitution of a new law, in cases, in which every little circumstance is the same; yet in laws immutable, such as are the laws of nature, they are no laws to the same or other judges, in the like cases for ever after. Princes succeed one another; and one judge passeth, another cometh; nay, heaven and earth shall pass; but not one tittle 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 reason. For example 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 and 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 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 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, 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, saith he, that is innocent, be accused of felony, and for fear flyeth for the same; albeit he judicially acquitteth himself 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 proof 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 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: 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 proof shall be admitted against a presumption of law. For all judges, sovereign and subordinate, if they refuse to hear 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 precedents: 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 to 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 writeth a commentary upon them. For commentaries are commonly more subject to cavil, than the text; and therefore need other commentaries; and so there will be no end of such 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 to bind other judges, in like cases to give like 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 words, 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 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 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 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 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 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 pleadings show it, and by authority interpret it upon the place. The Lords of parliament 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 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 the judges, and give sentence, not only of the fact, but of the right; and pronounce 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 that he 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 principal 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 have had most leisure, and had the most inclination to meditate thereon. Secondly, contempt of unnecessary riches, and preferments. Thirdly, to be able in judgment to divest himself of all fear, anger, hatred, love, and compassion. Fourthly, and lastly, patience to hear; diligent attention in hearing; and memory to retain, digest and apply what he hath heard.
The difference and division of the laws, 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 man’s proper method. In the Institutions of Justinian, we find seven sorts of civil laws:
1. The edicts, constitutions, and epistles of the 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.
2. 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 authority imperial. For all laws that bind, are understood to be laws by his authority that has power to repeal them. Somewhat like to these laws, 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 emperors, remained laws by the authority imperial. 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 emperor, that men should consult the senate, instead of the people; and these have some resemblance with the acts of council.
5. The edicts of prætors, and in some cases of ædiles: such as are the chief justices in the courts of England.
6. Responsa prudentum; which were the sentences, and opinion 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 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 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 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; 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 laws 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 divine), 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 laws 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, 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 supernatural 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 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 favour; yet they are not assured evidences of special revelation. Miracles are marvellous works: 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 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; every one, as the signs thereof shall appear greater or lesser, a firmer or a weaker belief.
But for the second, how can he 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 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 cogitations, 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 laws 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, (Gen. xvii. 10) This is the covenant which thou shalt observe between me and thee and thy seed after thee. Abraham’s 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 God’s law; which they could not be, but in virtue 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 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 they were 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 commandment; 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; and 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, than are declared for such by the commonwealth. Christian states punish those that revolt from the 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 signifieth. Nevertheless one may very reasonably distinguish laws in that manner.
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 is 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 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 nevertheless ought not to be so. For 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 neighbour, 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. Insomuch as lex and jus, are as 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 phrase of a law is, jubeo, injungo, I command and enjoin: 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 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 hath been no law made; or else having been made, is now abrogated.
CHAPTER XXVII.
OF CRIMES, EXCUSES, AND EXTENUATIONS.
A SIN, is not only a transgression of a 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 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 belongeth 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 thereto. 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, were 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 safer 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 forbiddeth, 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 thoughts 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 ἁμάρτημα, and ἔγκλημα, or ἀιτία; whereof the former, which is translated sin, signifieth 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 peccatum, which is sin, signify all manner of deviation from the law; but by crimen, which word they derive from cerno, 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 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 every one 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 whereof all sovereignty was ordained. But this is to be understood only 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.
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 place soever 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 endeavour 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, in 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 any action, accepteth all the known consequences of it; but punishment is a known consequence of the violation of the laws, in every commonwealth; which punishment, if it be determined already by the law, he is subject to that; if not, then he is 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 injustice, with the harm of their punishment, by necessity of nature they chuse 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 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 forbiddeth 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, 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 in their enterprises, have been esteemed the only 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 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, as fortune pleaseth; so that what Marius makes a crime, Sylla shall make meritorious, and Cæsar, the same laws 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 pretendeth 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 proceedeth 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 rigour 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 belongeth 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 neighbours; 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 withal 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 sufficeth to weigh down the apprehension of all easy, or uncertain punishments.