Hobbes, Lev XXVII
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CHAPTER XXVII: OF CRIMES, EXCUSES, AND EXTENUATIONS
1. 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 the speaking of words by the laws forbidden, or in the omission of what the law commandeth, but also in the intention or purpose to transgress. For the purpose to break the law is some degree of contempt of him to whom it belonged to see it executed. To be delighted in the imagination only of being possessed of another man's goods, servants, or wife, without any intention to take them from him by force or fraud, is no breach of the law, that saith, "Thou shalt not covet": nor is the pleasure a man may have in imagining or dreaming of the death of him from whose life he expecteth nothing but damage and displeasure, a sin; but the resolving to put some act in execution that tendeth 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.
2. 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 thought of man can lay it to his charge: but till it appear by something done, or said, by which the intention may be argued by a human judge, it hath not the name of crime: which distinction the Greeks observed in the word amartema and egklema or aitia; 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.
3. 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.
4. 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.
5. 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.
6. Ignorance of the sovereign power 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.
7. 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 is he subject to arbitrary punishment. For it is reason that he which does injury, without other limitation than that of his own will, should suffer punishment without other limitation than that of his will whose law is thereby violated.
8. 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 choose 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.
9. 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.
10. 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 authorised 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 fortune pleaseth; so that what Marius makes a crime, Sylla shall make meritorious, and Caesar (the same laws standing) turn again into a crime, to the perpetual disturbance of the peace of the Commonwealth.
11. 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.
12. 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.
13. Of the passions that most frequently are the causes of crime, one is vainglory, 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 rigor they are inflicted on poor, obscure, and simple men, comprehended under the name of the vulgar.
14. 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.
15. 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 belonged to put them in execution.
16. 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.
17. And generally all vainglorious 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.
18. 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.
19. 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 appearance of profit or pleasure by breaking the laws) that makes men keep them. And yet in many cases a crime may be committed through fear.
20. 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 fantastical, and (though, in this corner of the world, made sensible by a custom not many years since begun, amongst young and vain men) so light as a gallant man, and one that is assured of his own courage, cannot take notice of. Also a man may stand in fear of spirits, either through his own superstition or through too much credit given to other men that tell him of strange dreams and visions; and thereby be made believe they will hurt him for doing or omitting diverse 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 anything 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.
21. From these different sources of crimes, it appears already that all crimes are not, as the Stoics of old time maintained, of the same alloy. There is place, not only for excuse, by which that which seemed 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.
22. 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.
23. 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 enquire 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.
24. 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.
25. 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.
26. 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.
27. 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.
28. 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 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.
29. The degrees of crime are taken on diverse scales, and measured, first, by the malignity of the source, or cause: secondly, by the contagion of the example: thirdly, by the mischief of the effect: and fourthly, by the concurrence of times, places, and persons.
30. 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 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 shown him, is conformable to the law.
31. He whose error proceeds from the authority of a teacher, or an interpreter of the law publicly authorised, 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 judgement ought, according to the rectitude or error thereof, to stand or fall.
32. 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.
33. 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 postponed to his own appetite. But there is no suddenness of passion sufficient for a total excuse: for all the time between the first knowing of the law, and the commission of the fact, shall be taken for a time of deliberation, because he ought, by meditation of the law, to rectify the irregularity of his passions.
34. 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.
35. Those facts which the law expressly condemneth, but the lawmaker by other manifest signs of his will tacitly approveth, are less crimes than the same facts condemned both by the law and lawmaker. For seeing the will of the lawmaker is a law, there appear in this case two contradictory laws; which would totally excuse, if men were bound to take notice of the sovereigns 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.
36. 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 authorised 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 men carry before them.
37. 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 laesae majestatis, and consist in design, or act, contrary to a fundamental law.
38. Likewise those crimes which render judgements of no effect are greater crimes than injuries done to one or a few persons; as to receive money to give false judgement 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 judgements, but all judgements are rendered useless, and occasion ministered to force and private revenges.
39. Also robbery and depeculation of the public treasury or revenues is a greater crime than the robbing or defrauding of a private man, because to rob the public is to rob many at once; also the counterfeit usurpation of public ministry, the counterfeiting of public seals, or public coin, than counterfeiting of a private man's person or his seal, because the fraud thereof extendeth to the damage of many.
40. 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:
41. To kill against the law is a greater crime than any other injury, life preserved.
42. And to kill with torment, greater than simply to kill.
43. And mutilation of a limb, greater than the spoiling a man of his goods.
44. And the spoiling a man of his goods by terror of death or wounds, than by clandestine surreption.
45. And by clandestine surreption, than by consent fraudulently obtained.
46. And the violation of chastity by force, greater than by flattery.
47. And of a woman married, than of a woman not married.
48. 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.
49. 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.
50. 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 have surrendered his power to the civil law), because he had it originally by nature. And to rob a poor man is a greater crime than to rob a rich man, because it is to the poor a more sensible damage.
51. 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.
52. 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.
53. 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 thereupon 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.