Page 82 of 175
Also the Counterfeit usurpation of publique Ministery, the Counterfeiting of publique Seales, or publique Coine, than counterfeiting of a private mans person, or his seale; because the fraud thereof, extendeth to the dammage of many.
Of facts against the Law, done to private men, the greater Crime, is that, where the dammage in the common opinion of men, is most sensible. And therefore
To kill against the Law, is a greater Crime, that any other injury, life preserved.
And to kill with Torment, greater, than simply to kill.
And Mutilation of a limbe, greater, than the spoyling a man of his goods.
And the spoyling a man of his goods, by Terrour of death, or wounds, than by clandestine surreption.
And by clandestine Surreption, than by consent fraudulently obtained.
And the violation of chastity by Force, greater, than by flattery.
And of a woman Married, than of a woman not married.
For all these things are commonly so valued; though some men are more, and some lesse sensible of the same offence. But the Law regardeth not the particular, but the generall inclination of mankind.
And therefore the offence men take, from contumely, in words, or gesture, when they produce no other harme, than the present griefe of him that is reproached, hath been neglected in the Lawes of the Greeks, Romans, and other both antient, and moderne Common-wealths; supposing the true cause of such griefe to consist, not in the contumely, (which takes no hold upon men conscious of their own Vertue,) but in the Pusillanimity of him that is offended by it.
Also a Crime against a private man, is much aggravated by the person, time, and place. For to kill ones Parent, is a greater Crime, than to kill another: for the Parent ought to have the honour of a Soveraign, (though he have surrendred his Power to the Civill Law,) because he had it originally by Nature. And to Robbe a poore man, is a greater Crime, than to robbe a rich man; because 'tis to the poore a more sensible dammage.
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.
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.
Lastly, because in almost all Crimes there is an Injury done, not onely to some Private man, but also to the Common-wealth; the same Crime, when the accusation is in the name of the Common-wealth, is called Publique Crime; and when in the name of a Private man, a Private Crime; And the Pleas according thereunto called Publique, 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 Soveraign, the plea is a Publique plea.
"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."
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.
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.
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.
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.
