Of all passions, that which inclineth men least to break the laws, is fear. Nay, excepting some generous natures, it is the only thing, when there is apparence 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 produceth, 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 assaulteth 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 defence of his life, or limbs, where the law cannot arrive time enough to 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 phantastical, 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 omitting divers things, which nevertheless, to do, or omit, is contrary to the laws; and that which is so done, or omitted, is not to be excused by this fear; but is a crime. For, as I have shown before in the second chapter, dreams be naturally but the fancies remaining in sleep, after the impressions our senses had formerly received waking; and when men are by any accident unassured they have slept, seem to be 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, leaveth the law of nature, which is a certain offence, and followeth the imagery of his own, or another private man’s brain, which he can never know whether it signifieth any thing or nothing, nor whether he that tells his dream, say true, or lie; which if every private man should have leave to do, as they must by the law of nature, if any one have it, there could no law be made to hold, and so all commonwealth would be dissolved.
From these different sources of crimes, it appears already, that all crimes are not, as the Stoics of old time maintained, of the same allay. There is place, not only for EXCUSE, by which that which seemed a crime, is proved to be none at all; but also for EXTENUATION, by which the crime, that seemed great, is made 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 excuseth a fact, and takes away from it the nature of a crime, can be none but that, which at the same time, taketh away the obligation of the law. For the fact committed once against the law, if he that committed it be obliged to the law, can be no other than a crime.
The want of means to know the law, totally excuseth. For the law whereof a man has no means to 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 madmen are excused from offences against the law natural.
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 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 take the food by force, or stealth, which he cannot obtain for money nor charity; or in defence 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, commandeth a man to do that which is contrary to a former law, the doing of it is totally excused: for he ought not to condemn it 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 there accrueth 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 in anything contrary to the liberty granted, this is nevertheless a sin, and contrary to the duty of the subject: for he ought to take notice of what is inconsistent with the sovereignty, because it was erected by his own consent and for his own defence; and that such liberty as is inconsistent with it, was granted through ignorance of the evil consequence thereof. But if he not only disobey, but also resist 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 divers 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 whence 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 which we know to be so, is greater than the same crime proceeding from a false persuasion that it is lawful; for he that committeth it against his own conscience, presumeth on his force, or other power, which encourages him to commit the same again: but he that doth it by error, after the error is shewn 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 teacheth by public authority, the commonwealth teacheth, and hath a resemblance of law, till the same authority controlleth 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 groundeth 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. For 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 encourageth him to offend, hath his part in the offence; he cannot reasonably charge the offender with the whole.
A crime arising from a sudden passion, is not so great, as when the same ariseth from long meditation: for in the former case there is a place for extenuation, in the common infirmity of 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 contemned and postposed 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 enquire of it with difficulty, uncertainty, and interruption of their callings, and be informed by private men: for in this case, part of the fault is discharged upon common infirmity; but, in the former, there is apparent negligence, which is not without some contempt of the sovereign power.
Those facts which the law expressly condemneth, but the law-maker by other manifest signs of his will tacitly approveth, are less crimes, than the same facts, condemned both by the law and law-maker. For seeing the will of the law-maker is a 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 consequent, 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 duels; the punishment is made capital: on the contrary part, he that refuseth duel, 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 thereupon he accept duel, considering all men lawfully endeavour 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 hurt 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 counsels 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 man 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 endeavours by word, or deed, to diminish the authority of the same, either in the present time, or in succession: which crimes the Latins understand by crimina læsæ majestatis, 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 sum; because not only he has wrong, that falls by such judgments; but all judgments are rendered useless, and occasion ministered to force, and private revenges.
Also robbery, and depeculation of the public treasure, 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, than counterfeiting of a private man’s person, or his seal; because the fraud thereof, extendeth 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, than by clandestine surreption.
And by clandestine surreption, than by consent fraudulently obtained.
And the violation of chastity by force, greater, than by flattery.
And of a woman married, than of a woman not married.
For all these things are commonly so valued: though some men are more, and some less sensible of the same offence. But the law regardeth not the particular, but the general inclination of mankind.
And therefore the offence men take, from contumely, in words, or gesture, when they produce no other harm, than the present grief of him that is reproached, hath 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 honour of a sovereign, though he surrendered his power to the civil law; because he had it originally by nature. And to rob a poor man, is a greater crime, than to rob a rich man; because it is to the poor a more sensible damage.
And a crime committed in the time or place appointed for devotion, is greater, than if committed at another time or place: for it proceeds from a greater contempt of the law.
Many other cases of aggravation, and extenuation might be added: but by these I have set down, it is obvious to every man, to take the altitude of any other crime proposed.
Lastly, because in almost all crimes there is an injury done, not only to some private men, but also to the commonwealth; the same crime, when the accusation is in the name of the commonwealth, is called public crime: and when in the name of a private man, a private crime; and the pleas according thereunto called public, judicia publica, Pleas of the Crown; or Private Pleas. As in an accusation of murder, if the accuser be a private man, the plea is a Private Plea; if the accuser be the sovereign, the plea is a Public Plea.
A PUNISHMENT, is an evil inflicted by public authority, on him that hath done, or omitted that which is judged by the same authority to be a transgression of the law; to the end that the will of men may thereby the better be disposed to obedience.
Before I infer any thing from this definition, there is a question to be answered, of much importance; which is, by what door the right or authority of punishing in any case, came in. For by that which has been said before, no man is supposed bound by covenant, not to resist violence; and consequently it cannot be intended, that he gave any right to another to lay violent hands upon his person. In the making of a commonwealth, every man giveth away the right of defending another; but not of defending himself. Also he obligeth himself, to assist him that hath the sovereignty, in the punishing of another; but of himself not. But to covenant to assist the sovereign, in doing hurt to another, unless he that so covenanteth have a right to do it himself, is not to give him a right to punish. It is manifest therefore that the right which the commonwealth, that is, he, or they that represent it, hath to punish, is not grounded on any concession, or gift of the subjects. But I have also showed formerly, that before the institution of commonwealth, every man had a right to every thing, and to do whatsoever he thought necessary to his own preservation; subduing, hurting, or killing any man in order thereunto. And this is the foundation of that right of punishing, which is exercised in every commonwealth. For the subjects did not give the sovereign that right; but only in laying down theirs, strengthened him to use his own, as he should think fit, for the preservation of them all: so that it was not given, but left to him, and to him only; and (excepting the limits set him by natural law) as entire, as in the condition of mere nature, and of war of every one against his neighbour.
From the definition of punishment, I infer, first, that neither private revenges, nor injuries of private men, can properly be styled punishment; because they proceed not from public authority.
Secondly, that to be neglected, and unpreferred by the public favour, is not a punishment; because no new evil is thereby on any man inflicted; he is only left in the estate he was in before.
Thirdly, that the evil inflicted by public authority, without precedent public condemnation, is not to be styled by the name of punishment; but of an hostile act; because the fact for which a man is punished, ought first to be judged by public authority, to be a transgression of the law.
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 be annexed by nature, divers 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 of men, because it is not inflicted by the authority of man.
Seventhly, if the harm inflicted be less than the benefit, or contentment that naturally followeth the crime committed, that harm is not within the definition; and is rather the price, or redemption, than the punishment of a crime: because it is of the nature of punishment, to have for end, the disposing of men to obey the law; which end, if it be less than the benefit of the transgression, it attaineth not, but worketh a contrary effect.
Eighthly, if a punishment be determined and prescribed 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, hath the nature of punishment. For he that goes about the violation of a law, wherein no penalty is determined, expecteth an indeterminate, that is to say, an arbitrary 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 supposeth a fact judged, to have been a transgression of the law; therefore harm inflicted before the law made, is not punishment, but an act of hostility.
Tenthly, hurt inflicted on the representative of the commonwealth, is not punishment, but an act of hostility: because it is of the nature of punishment, to be inflicted by public authority, which is the authority only of the representative itself.
Lastly, harm inflicted upon one that is a declared enemy, falls not under the name of punishment: because seeing they were either never subject to the law, and therefore cannot transgress it; or having been subject to it, and professing to be no longer so, by consequence deny they can transgress it, all the harms that can be done them, must be taken as acts of hostility. But in declared hostility, all infliction of evil is lawful. From whence it followeth, that if a subject shall by fact, or word, wittingly, and deliberately deny the authority of the representative of the commonwealth (whatsoever penalty hath been formerly ordained for treason) he may lawfully be made to suffer whatsoever the representative will. For in denying subjection, he denies such punishment as by the law hath been ordained; and therefore suffers as an enemy of the commonwealth; that is, according to the will of the representative. For the punishments set down in the law, are to subjects, not to enemies; such as are they, that having been by their own acts 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 inflicteth it: such as are 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 infliction 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 infliction 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 consisteth 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 case the law, that ordaineth 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 doth not absolutely forbid the fact, but only to those that 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 a law exacteth a pecuniary mulct, of them that take the name of God in vain, the payment of the mulct, 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 extinguisheth the accusation of the party injured, not the crime of the offender.
Ignominy, is the infliction of such evil, as is made dishonourable; or the deprivation of such good, as is made honourable by the commonwealth. For there be some things honourable by nature; as the effects of courage, magnanimity, strength, wisdom, and other abilities of body and mind: others made honourable by the commonwealth; as badges, titles, offices, or any other singular mark of the sovereign’s favour. The former, though they may fail by nature, or accident, cannot be taken away by a law; and therefore the loss of them is not punishment. But the latter, may be taken away by the public authority that made them honourable, 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 divers ends; whereof one is the safe custody of a man accused; the other is the inflicting of pain on a man condemned. The former is not 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 in 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 for ever, not to return into it: and seemeth not in its own nature, without other circumstances, to be a punishment; but rather an escape, or a 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 withal 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 ingratitude: 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 soever, 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 judgeth capable to do them hurt, it is lawful by the original right of nature to make war; wherein the sword judgeth not, nor doth the victor make distinction of nocent, and innocent, as to the time past nor has other respect of mercy, than as it conduceth to the good of his own people. |Nor that which is done to declared rebels.| 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 offence, consisteth 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 either of gift, or by contract. When by contract, it is called salary, and wages; which is benefit due for service performed, or promised. When of gift, it is benefit proceeding from the grace of them that bestow it, to encourage, or enable men to do them service. And therefore when the sovereign of a commonwealth appointeth a salary to any public office, he that receiveth it, is bound in justice to perform his office; otherwise, he is bound only in honour, to acknowledgment, and an endeavour 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 thereto, 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, insomuch as the most common soldier, may demand the wages of his warfare, as a debt.
The benefit which a 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 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 treasure; 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 ministers of a court of justice ariseth from the multitude of causes that are brought to their cognizance, there must needs follow two inconveniences: one, is the nourishing of suits; for the more suits, the greater benefit: and another that depends on that, which is contention 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 endeavour of their own. And thus much shall suffice for the nature of punishment and reward; which are, as it were, the nerves and tendons, that move the 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 seeth every high thing below him; and is 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.
Though nothing can be immortal, which mortals make; yet, if men had the use of reason they pretend to, their commonwealths might be secured, at least from perishing by internal diseases. For by the nature of their institution, they are designed to live, as long as mankind, or as the laws of nature, or as justice itself, which gives them life. Therefore when they come to be dissolved, not by external violence, but intestine disorder, the fault is not in men, as they are the matter; but as they are the makers, and orderers of them. For men, as they become at last weary of irregular jostling, and hewing one another, and desire with all their hearts, to conform themselves into one firm and lasting edifice: so for want, both of the art of making fit laws, to square their actions by, and also of humility, and patience, to suffer the rude and cumbersome points of their present greatness to be taken off, they cannot without the help of a very able architect, be compiled into any other than a crazy building, such as hardly lasting out their own time, must assuredly fall upon the heads of their posterity.
Amongst the infirmities therefore of a commonwealth, I will reckon in the first place, those that arise from an imperfect institution, and resemble the diseases of a natural body, which proceed from a defectuous procreation.
Of which, this is one, that a man to obtain a kingdom, is sometimes content with less power, than to the peace, and defence of the commonwealth is necessarily required. From whence it cometh to pass, that when the exercise of the power laid by, is for the public safety to be resumed, it hath the resemblance of an unjust act; which disposeth great numbers of men, when occasion is presented, to rebel; in the same manner as the bodies of children, gotten by diseased parents, are subject either to untimely death, or to purge the ill quality, derived from their vicious conception, by breaking out into biles and scabs. And when kings deny themselves some such necessary power, it is not always, though sometimes, out of ignorance of what is necessary to the office they undertake; but many times out of a hope to recover the same again at their pleasure. Wherein they reason not well; because such as will hold them to their promises, shall be maintained against them by foreign commonwealths; who in order to the good of their own subjects let slip few occasions to weaken the estate of their neighbours. So was Thomas Becket, archbishop of Canterbury, supported against Henry the Second, by the Pope; the subjection of ecclesiastics to the commonwealth, having been dispensed with by William the Conqueror at his reception, when he took an oath, not to infringe the liberty of the church. And so were the barons, whose power was by William Rufus, to have their help in transferring the succession from his elder brother to himself, increased to a degree inconsistent with the sovereign power, maintained in their rebellion against king John, by the French.
Nor does this happen in monarchy only. For whereas the style of the ancient Roman commonwealth, was, the senate and people of Rome; neither senate, nor people pretended to the whole power; which first caused the seditions, of Tiberius Gracchus, Caius Gracchus, Lucius Saturninus, and others; and afterwards the wars between the senate and the people, under Marius and Sylla; and again under Pompey and Cæsar, to the extinction of their democracy, and the setting up of monarchy.
The people of Athens bound themselves but from one only action; which was, that no man on pain of death should propound the renewing of the war for the island of Salamis; and yet thereby, if Solon had not caused to be given out he was mad, and afterwards in gesture and habit of a madman, and in verse, propounded it to the people that flocked about him, they had had an enemy perpetually in readiness, even at the gates of their city; such damage, or shifts, are all commonwealths forced to, that have their power never so little limited.
In the second place, I observe the diseases of a commonwealth, that proceed from the poison of seditious doctrines, whereof one is, That every private man is judge of good and evil actions. This is true in the condition of mere nature, where there are no civil laws; and also under civil government, in such cases as are not determined by the law. But otherwise, it is manifest, that the measure of good and evil actions, is the civil law; and the judge the legislator, who is always representative of the commonwealth. From this false doctrine, men are disposed to debate with themselves, and dispute the commands of the commonwealth; and afterwards to obey, or disobey them, as in their private judgments they shall think fit; whereby the commonwealth is distracted and weakened.