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 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 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 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 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 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 be annexed 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 of 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 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 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 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 inflicter, 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 sovereigns 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 diverse 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. 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 acknowledgement 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 benefits 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 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 ministers of a court of justice, ariseth for 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 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 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.
Last updated Monday, December 22, 2014 at 10:51