Page 81 of 175
The same Fact, if it have been constantly punished in other men, as a greater Crime, than if there have been may precedent Examples of impunity. For those Examples, are so many hopes of Impunity given by the Soveraign himselfe: 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 humane nature: but he that doth it with praemeditation, has used circumspection, and cast his eye, on the Law, on the punishment, and on the consequence thereof to humane society; all which in committing the Crime, hee hath contemned, and postposed to his own appetite. But there is no suddennesse of Passion sufficient for a totall 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 rectifie the irregularity of his Passions.
Where the Law is publiquely, 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 Soveraign Power.
Those facts which the Law expresly condemneth, but the Law-maker by other manifest signes of his will tacitly approveth, are lesse Crimes, than the same facts, condemned both by the Law, and Lawmaker. For seeing the will of the Law-maker is a Law, there appear in this case two contradictory Lawes; which would totally Excuse, if men were bound to take notice of the Soveraigns approbation, by other arguments, than are expressed by his command. But because there are punishments consequent, not onely 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 Duells; the punishment is made capitall: On the contrary part, he that refuseth Duell, is subject to contempt and scorne, without remedy; and sometimes by the Soveraign himselfe thought unworthy to have any charge, or preferment in Warre: If thereupon he accept Duell, considering all men lawfully endeavour to obtain the good opinion of them that have the Soveraign 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 Governours, not to countenance any thing 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 Lawes 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 supernaturall grace to follow that Precept.
Again, if we compare Crimes by the mischiefe of their Effects, First, the same fact, when it redounds to the dammage of many, is greater, than when it redounds to the hurt of few. And therefore, when a fact hurteth, not onely in the present, but also, (by example) in the future, it is a greater Crime, than if it hurt onely in the present: for the former, is a fertile Crime, and multiplyes to the hurt of many; the later is barren. To maintain doctrines contrary to the Religion established in the Common-wealth, is a greater fault, in an authorised Preacher, than in a private person: So also is it, to live prophanely, incontinently, or do any irreligious act whatsoever. Likewise in a Professor of the Law, to maintain any point, on do any act, that tendeth to the weakning of the Soveraign Power, as a greater Crime, than in another man: Also in a man that hath such reputation for wisedome, as that his counsells 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 onely commit Crime, but teach it for Law to all other men. And generally all Crimes are the greater, by the scandall 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.
Also Facts of Hostility against the present state of the Common-wealth, are greater Crimes, than the same acts done to private men; For the dammage extends it selfe to all: Such are the betraying of the strengths, or revealing of the secrets of the Common-wealth to an Enemy; also all attempts upon the Representative of the Common-wealth, 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 Latines understand by Crimina Laesae Majestatis, and consist in designe, or act, contrary to a Fundamentall Law.
Likewise those Crimes, which render Judgements of no effect, are greater Crimes, than Injuries done to one, or a few persons; as to receive mony to give False judgement, or testimony, is a greater Crime, than otherwise to deceive a man of the like, or a greater summe; because not onely he has wrong, that falls by such judgements; but all Judgements are rendered uselesse, and occasion ministred to force, and private revenges.
Also Robbery, and Depeculation of the Publique treasure, or Revenues, is a greater Crime, than the robbing, or defrauding of a Private man; because to robbe the publique, is to robbe many at once.
