The Definition Of Punishment
"A PUNISHMENT, is an Evill inflicted by publique 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."
Right To Punish Whence Derived
Before I inferre 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
Common-wealth, every man giveth away the right of defending another; but
not of defending himselfe. Also he obligeth himselfe, to assist him that
hath 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 Common-wealth (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
Common-wealth, 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
Common-wealth. 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 Common-wealth Unpunishable
Tenthly, Hurt inflicted on the Representative of the Common-wealth, 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 Common-wealth, (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 Common-wealth; 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
Common-wealth. 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 Common-wealth; 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 Common-wealth, 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 Common-wealth, 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 Common-wealth. For a Banished man, is a lawfull enemy of the
Common-wealth that banished him; as being no more a Member of the
same. But if he be withall deprived of his Lands, or Goods, then
the Punishment lyeth not in the Exile, but is to be reckoned amongst
Punishments Pecuniary.
The Punishment Of Innocent Subjects Is Contrary To The Law Of Nature
All Punishments of Innocent subjects, be they great or little, are
against the Law of Nature; For Punishment is only of 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 any thing but some future good:
For there can arrive no good to the Common-wealth, by Punishing the
Innocent. Secondly, of that, which forbiddeth Ingratitude: For seeing
all Soveraign 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 rendring of
Evill for Good. And thirdly, of the Law that commandeth Equity; that
is to say, an equall distribution of Justice; which in Punishing the
Innocent is not observed.
But The Harme Done To Innocents In War, Not So
But the Infliction of what evill soever, on an Innocent man, that is not
a Subject, if it be for the benefit of the Common-wealth, 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 Common-wealth judgeth capable to do them hurt, it is lawfull by
the originall Right of Nature to make warre; 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 deliberatly deny the Authority of the Common-wealth
established, the vengeance is lawfully extended, not onely 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 warre, commonly
called Rebellion; and they that so offend, suffer not as Subjects, but
as Enemies. For Rebellion, is but warre renewed.
Reward, Is Either Salary, Or Grace
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 Soveraign of a Common-wealth appointeth a Salary
to any publique Office, he that receiveth it, is bound in Justice
to performe his office; otherwise, he is bound onely in honour, to
acknowledgement, and an endeavour of requitall. For though men have no
lawfull remedy, when they be commanded to quit their private businesse,
to serve the publique, without Reward, or Salary; yet they are not
bound thereto, by the Law of Nature, nor by the institution of the
Common-wealth, unlesse the service cannot otherwise be done; because it
is supposed the Soveraign may make use of all their means, insomuch as
the most common Souldier, may demand the wages of his warrefare, as a
debt.
Benefits Bestowed For Fear, Are Not Rewards
The benefits which a Soveraign bestoweth on a Subject, for fear of some
power, and ability he hath to do hurt to the Common-wealth, are not
properly Rewards; for they are not Salaryes; because there is in this
case no contract supposed, every man being obliged already not to do the
Common-wealth disservice: nor are they Graces; because they be extorted
by feare, which ought not to be incident to the Soveraign Power: but
are rather Sacrifices, which the Soveraign (considered in his naturall
person, and not in the person of the Common-wealth) makes, for the
appeasing the discontent of him he thinks more potent than himselfe; and
encourage not to obedience, but on the contrary, to the continuance, and
increasing of further extortion.
Salaries Certain And Casuall
And whereas some Salaries are certain, and proceed from the publique
Treasure; and others uncertain, and casuall, proceeding from the
execution of the Office for which the Salary is ordained; the later
is in some cases hurtfull to the Common-wealth; 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 cognisance, there must needs follow two Inconveniences: One,
is the nourishing of sutes; for the more sutes, the greater benefit: and
another that depends on that, which is contention about Jurisdiction;
each Court drawing to it selfe, as many Causes as it can. But in
offices of Execution there are not those Inconveniences; because their
employment cannot be encreased 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 limbes and joynts of a
Common-wealth.
Hitherto I have set forth the nature of Man, (whose Pride and other
Passions have compelled him to submit himselfe to Government;) together
with the great power of his Governour, 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, called him King of the Proud. "There is nothing," saith he,
"on earth, to be compared with him. He is made so as not be afraid. Hee
seeth every high thing below him; and is King of all the children of
pride." But because he is mortall, 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 Lawes he ought to
obey; I shall in the next following Chapters speak of his Diseases, and
the causes of his Mortality; and of what Lawes of Nature he is bound to
obey.