Leviathan by Thomas Hobbes (general ebook reader txt) 📖

the Soveraignty, in the Punishing of another; but of himselfe not. But to covenant to assist the Soveraign, in doing hurt to another, unlesse he that so covenanteth have a right to doe it himselfe, is not to give him a Right to Punish.

It is manifest therefore that the Right which the 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 shewed 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 Soveraign that right; but onely in laying down theirs, strengthned him to use his own, as he should think fit, for the preservation of them all: so that it was not given, but left to him, and to him onely; and (excepting the limits set him by naturall Law) as entire, as in the condition of meer Nature, and of warre of every one against his neighbour.

 

Private Injuries, And Revenges No Punishments From the definition of Punishment, I inferre, First, that neither private revenges, nor injuries of private men, can properly be stiled Punishment; because they proceed not from publique Authority.

 

Nor Denyall Of Preferment

Secondly, that to be neglected, and unpreferred by the publique favour, is not a Punishment; because no new evill is thereby on any man Inflicted; he is onely left in the estate he was in before.

 

Nor Pain Inflicted Without Publique Hearing Thirdly, that the evill inflicted by publique Authority, without precedent publique condemnation, is not to be stiled by the name of Punishment; but of an hostile act; because the fact for which a man is Punished, ought first to be Judged by publique Authority, to be a transgression of the Law.

 

Nor Pain Inflicted By Usurped Power

Fourthly, that the evill inflicted by usurped power, and Judges without Authority from the Soveraign, is not Punishment; but an act of hostility; because the acts of power usurped, have not for Author, the person condemned; and therefore are not acts of publique Authority.

 

Nor Pain Inflicted Without Respect To The Future Good Fifthly, that all evill which is inflicted without intention, or possibility of disposing the Delinquent, or (by his example) other men, to obey the Lawes, is not Punishment; but an act of hostility; because without such an end, no hurt done is contained under that name.

 

Naturall Evill Consequences, No Punishments Sixthly, whereas to certain actions, there be annexed by Nature, divers hurtfull consequences; as when a man in assaulting another, is himselfe slain, or wounded; or when he falleth into sicknesse by the doing of some unlawfull act; such hurt, though in respect of God, who is the author of Nature, it may be said to be inflicted, and therefore a Punishment divine; yet it is not contaned in the name of Punishment in respect of men, because it is not inflicted by the Authority of man.

 

Hurt Inflicted, If Lesse Than The Benefit Of Transgressing, Is Not Punishment

Seventhly, If the harm inflicted be lesse than the benefit, or contentment that naturally followeth the crime committed, that harm is not within the definition; and is rather the Price, or Redemption, than the Punishment of a Crime: Because it is of the nature of Punishment, to have for end, the disposing of men to obey the Law; which end (if it be lesse that the benefit of the transgression) it attaineth not, but worketh a contrary effect.

 

Where The Punishment Is Annexed To The Law, A Greater Hurt Is Not Punishment, But Hostility Eighthly, If a Punishment be determined and prescribed in the Law it selfe, and after the crime committed, there be a greater Punishment inflicted, the excesse is not Punishment, but an act of hostility. For seeing the aym of Punishment is not a revenge, but terrour; and the terrour of a great Punishment unknown, is taken away by the declaration of a lesse, the unexpected addition is no part of the Punishment. But where there is no Punishment at all determined by the Law, there whatsoever is inflicted, hath the nature of Punishment. 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.

 

Hurt Inflicted For A Fact Done

Before The Law, No Punishment

Ninthly, Harme inflicted for a Fact done before there was a Law that forbad 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 Harme inflicted before the Law made, is not Punishment, but an act of Hostility.

 

The Representative Of The Commonwealth Unpunishable 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 publique Authority, which is the Authority only of the Representative it self.

 

Hurt To Revolted Subjects Is Done By

Right Of War, Not By Way Of Punishment

Lastly, Harme inflicted upon one that is a declared enemy, fals not under the name of Punishment: Because seeing they were either never subject to the Law, and therefore cannot transgresse it; or having been subject to it, and professing to be no longer so, by consequence deny they can transgresse it, all the Harmes that can be done them, must be taken as acts of Hostility. But in declared Hostility, all infliction of evill is lawfull. From whence it followeth, that if a subject shall by fact, or word, wittingly, and deliberatly 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 denyes 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 Soveraign Power.

 

The first, and most generall distribution of Punishments, is into Divine, and Humane. Of the former I shall have occasion, to speak, in a more convenient place hereafter.

 

Humane, are those Punishments that be inflicted by the Commandement of Man; and are either Corporall, or Pecuniary, or Ignominy, or Imprisonment, or Exile, or mixt of these.

 

Punishments Corporall

Corporall 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.

 

Capitall

And of these, some be Capitall, some Lesse than Capitall.

Capitall, is the Infliction of Death; and that either simply, or with torment. Lesse than Capitall, are Stripes, Wounds, Chains, and any other corporall Paine, not in its own nature mortall.

For if upon the Infliction of a Punishment death follow not in the Intention of the Inflicter, the Punishment is not be bee esteemed Capitall, though the harme prove mortall 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 Summe of Mony, but also of Lands, or any other goods which are usually bought and sold for mony. And in case the Law, that ordaineth such a punishment, be made with design to gather mony, from such as shall transgresse the same, it is not properly a Punishment, but the Price of priviledge, and exemption from the Law, which doth not absolutely forbid the fact, but only to those that are not able to pay the mony: except where the Law is Naturall, 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 vaine, the payment of the mulct, is not the price of a dispensation to sweare, but the Punishment of the transgression of a Law undispensable.

In like manner if the Law impose a Summe of Mony to be payd, 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

Ignominy, is the infliction of such Evill, as is made Dishonorable; or the deprivation of such Good, as is made Honourable by the Commonwealth. For there be some things Honorable by Nature; as the effects of Courage, Magnanimity, Strength, Wisdome, and other abilities of body and mind: Others made Honorable by the Commonwealth; as Badges, Titles, Offices, or any other singular marke of the Soveraigns favour. The former, (though they may faile by nature, or accident,) cannot be taken away by a Law; and therefore the losse of them is not Punishment. But the later, may be taken away by the publique authority that made them Honorable, and are properly Punishments: Such are degrading men condemned, of their Badges, Titles, and Offices; or declaring them uncapable of the like in time to come.

 

Imprisonment

Imprisonment, is when a man is by publique 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 paine on a man condemned. The former is not Punishment; because no man is supposed to be Punisht, 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 Later is Punishment, because Evill, and inflicted by publique 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 externall obstacle, be it a House, which is called by the generall name of a Prison; or an Iland, as when men are said to be confined to it; or a place where men are set to worke, as in old time men have been condemned to Quarries, and in these times to Gallies; or be it a Chaine, or any other such impediment.

 

Exile

Exile, (Banishment) is when a man is for a crime, condemned to depart out of the dominion of the Commonwealth, or out of a certaine 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 publique commandement to avoid Punishment by flight.

And Cicero sayes, there was never any such Punishment ordained in the City of Rome; but cals it a refuge of men in danger.

For if a man banished, be neverthelesse permitted to enjoy his Goods, and the Revenue of his Lands, the meer change of ayr 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 mens wils to the observation of the Law;) but many times to the dammage of the Commonwealth. For a Banished man, is a lawfull enemy of the Commonwealth that banished him; as