Chapter 17 of 42

But for the second, how he can be bound to obey them; it is not so hard. For if the Law declared, be not against the Law of Nature (which is undoubtedly Gods Law) and he undertake to obey it, he is bound by his own act; bound I say to obey it, but not bound to believe it: for mens beliefe, and interiour cogitations, are not subject to the commands, but only to the operation of God, ordinary, or extraordinary. Faith of Supernaturall Law, is not a fulfilling, but only an assenting to the same; and not a duty that we exhibite to God, but a gift which God freely giveth to whom he pleaseth; as also Unbelief is not a breach of any of his Lawes; but a rejection of them all, except the Lawes Naturall. But this that I say, will be made yet cleerer, by the Examples, and Testimonies concerning this point in holy Scripture. The Covenant God made with Abraham (in a Supernaturall Manner) was thus, (Gen. 17. 10) "This is the Covenant which thou shalt observe between Me and Thee and thy Seed after thee." Abrahams Seed had not this revelation, nor were yet in being; yet they are a party to the Covenant, and bound to obey what Abraham should declare to them for Gods Law; which they could not be, but in vertue of the obedience they owed to their Parents; who (if they be Subject to no other earthly power, as here in the case of Abraham) have Soveraign power over their children, and servants. Againe, where God saith to Abraham, "In thee shall all Nations of the earth be blessed: For I know thou wilt command thy children, and thy house after thee to keep the way of the Lord, and to observe Righteousnesse and Judgement," it is manifest, the obedience of his Family, who had no Revelation, depended on their former obligation to obey their Soveraign. At Mount Sinai Moses only went up to God; the people were forbidden to approach on paine of death; yet were they bound to obey all that Moses declared to them for Gods Law. Upon what ground, but on this submission of their own, "Speak thou to us, and we will heare thee; but let not God speak to us, lest we dye?" By which two places it sufficiently appeareth, that in a Common-wealth, a subject that has no certain and assured Revelation particularly to himself concerning the Will of God, is to obey for such, the Command of the Common-wealth: for if men were at liberty, to take for Gods Commandements, their own dreams, and fancies, or the dreams and fancies of private men; scarce two men would agree upon what is Gods Commandement; and yet in respect of them, every man would despise the Commandements of the Common-wealth. I conclude therefore, that in all things not contrary to the Morall Law, (that is to say, to the Law of Nature,) all Subjects are bound to obey that for divine Law, which is declared to be so, by the Lawes of the Common-wealth. Which also is evident to any mans reason; for whatsoever is not against the Law of Nature, may be made Law in the name of them that have the Soveraign power; and there is no reason men should be the lesse obliged by it, when tis propounded in the name of God. Besides, there is no place in the world where men are permitted to pretend other Commandements of God, than are declared for such by the Common-wealth. Christian States punish those that revolt from Christian Religion, and all other States, those that set up any Religion by them forbidden. For in whatsoever is not regulated by the Common-wealth, tis Equity (which is the Law of Nature, and therefore an eternall Law of God) that every man equally enjoy his liberty.

Another Division Of Lawes

There is also another distinction of Laws, into Fundamentall, and Not Fundamentall: but I could never see in any Author, what a Fundamentall Law signifieth. Neverthelesse one may very reasonably distinguish Laws in that manner.

A Fundamentall Law What

For a Fundamentall Law in every Common-wealth is that, which being taken away, the Common-wealth faileth, and is utterly dissolved; as a building whose Foundation is destroyed. And therefore a Fundamentall Law is that, by which Subjects are bound to uphold whatsoever power is given to the Soveraign, whether a Monarch, or a Soveraign Assembly, without which the Common-wealth cannot stand, such as is the power of War and Peace, of Judicature, of Election of Officers, and of doing whatsoever he shall think necessary for the Publique good. Not Fundamentall is that the abrogating whereof, draweth not with it the dissolution of the Common-Wealth; such as are the Lawes Concerning Controversies between subject and subject. Thus much of the Division of Lawes.

Difference Between Law And Right

I find the words Lex Civilis, and Jus Civile, that is to say, Law and Right Civil, promiscuously used for the same thing, even in the most learned Authors; which neverthelesse ought not to be so. For Right is Liberty, namely that Liberty which the Civil Law leaves us: But Civill Law is an Obligation; and takes from us the Liberty which the Law of Nature gave us. Nature gave a Right to every man to secure himselfe by his own strength, and to invade a suspected neighbour, by way of prevention; but the Civill Law takes away that Liberty, in all cases where the protection of the Lawe may be safely stayd for. Insomuch as Lex and Jus, are as different as Obligation and Liberty.

And Between A Law And A Charter

Likewise Lawes and Charters are taken promiscuously for the same thing. Yet Charters are Donations of the Soveraign; and not Lawes, but exemptions from Law. The phrase of a Law is Jubeo, Injungo, I Command, and Enjoyn: the phrase of a Charter is Dedi, Concessi, I Have Given, I Have Granted: but what is given or granted, to a man, is not forced upon him, by a Law. A Law may be made to bind All the Subjects of a Common-wealth: a Liberty, or Charter is only to One man, or some One part of the people. For to say all the people of a Common-wealth, have Liberty in any case whatsoever; is to say, that in such case, there hath been no Law made; or else having been made, is now abrogated.

CHAPTER XXVII. OF CRIMES, EXCUSES, AND EXTENUATIONS

Sinne What

A Sinne, is not onely a Transgression of a Law, but also any Contempt of the Legislator. For such Contempt, is a breach of all his Lawes at once. And therefore may consist, not onely in the Commission of a Fact, or in the Speaking of Words by the Lawes forbidden, or in the Omission of what the Law commandeth, but also in the Intention, or purpose to transgresse. For the purpose to breake the Law, is some degree of Contempt of him, to whom it belongeth to see it executed. To be delighted in the Imagination onely, of being possessed of another mans goods, servants, or wife, without any intention to take them from him by force, or fraud, is no breach of the Law, that sayth, "Thou shalt not covet:" nor is the pleasure a man my have in imagining, or dreaming of the death of him, from whose life he expecteth nothing but dammage, and displeasure, a Sinne; 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 reall, is a Passion so adhaerent to the Nature both of a man, and every other living creature, as to make it a Sinne, were to make Sinne 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 Sinnes. But I confesse it is safer to erre on that hand, than on the other.

A Crime What

A Crime, is a sinne, 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 sinne; but not every sinne a Crime. To intend to steale, or kill, is a sinne, though it never appeare in Word, or Fact: for God that seeth the thoughts of man, can lay it to his charge: but till it appear by some thing done, or said, by which the intention may be Crime; which distinction the Greeks observed in the word amartema, and egklema, or aitia; wherof the former, (which is translated Sinne,) signifieth any swarving from the Law whatsoever; but the two later, (which are translated Crime,) signifie that sinne onely, whereof one man may accuse another. But of Intentions, which never appear by any outward act, there is no place for humane accusation. In like manner the Latines by Peccatum, which is Sinne, signifie all manner of deviation from the Law; but by crimen, (which word they derive from Cerno, which signifies to perceive,) they mean onely such sinnes, as my be made appear before a Judge; and therfore are not meer Intentions.

Where No Civill Law Is, There Is No Crime

From this relation of Sinne to the Law, and of Crime to the Civill Law, may be inferred, First, that where Law ceaseth, Sinne ceaseth. But because the Law of Nature is eternall, Violation of Covenants, Ingratitude, Arrogance, and all Facts contrary to any Morall vertue, can never cease to be Sinne. Secondly, that the Civill 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 onely by his own Conscience, and cleared by the Uprightnesse of his own Intention. When therefore his Intention is Right, his fact is no Sinne: if otherwise, his fact is Sinne; but not Crime. Thirdly, That when the Soveraign 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 Soveraign Power can be supposed to give away the Right of preserving his own body; for the safety whereof all Soveraignty was ordained. But this is to be understood onely 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.

Ignorance Of The Law Of Nature Excuseth No Man

The source of every Crime, is some defect of the Understanding; or some errour in Reasoning, or some sudden force of the Passions. Defect in the Understanding, is Ignorance; in Reasoning, Erroneous Opinion. Again, ignorance is of three sort; of the Law, and of the Soveraign, 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 himselfe. Therefore into what place soever a man shall come, if he do any thing contrary to that Law, it is a Crime. If a man come from the Indies hither, and perswade men here to receive a new Religion, or teach them any thing that tendeth to disobedience of the Lawes of this Country, though he be never so well perswaded of the truth of what he teacheth, he commits a Crime, and may be justly punished for the same, not onely because his doctrine is false, but also because he does that which he would not approve in another, namely, that comming from hence, he should endeavour to alter the Religion there. But ignorance of the Civill Law, shall Excuse a man in a strange Country, till it be declared to him; because, till then no Civill Law is binding.

Ignorance Of The Civill Law Excuseth Sometimes

In the like manner, if the Civill Law of a mans 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 Civill Law, Excuseth not.

Ignorance Of The Soveraign Excuseth Not

Ignorance of the Soveraign Power, in the place of a mans ordinary residence, Excuseth him not; because he ought to take notice of the Power, by which he hath been protected there.

Ignorance Of The Penalty Excuseth Not

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 Lawes, in every Common-wealth; 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.

Punishments Declared Before The Fact, Excuse From Greater Punishments After It

But when a penalty, is either annexed to the Crime in the Law it selfe, 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 deterre 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 the Law that tempted, and deceiveth them.

Nothing Can Be Made A Crime By A Law Made After The Fact

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 lyable to the Penalty ordained after, in case no lesser Penalty were made known before, neither by Writing, nor by Example, for the reason immediatly before alledged.

False Principles Of Right And Wrong Causes Of Crime

From defect in Reasoning, (that is to say, from Errour,) men are prone to violate the Lawes, three wayes. 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 Cob-web Lawes of their Country, the weaker sort, and those that have failed in their Enterprises, have been esteemed the onely 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 it selfe can be a Crime, but must be made so (not by the Law, but) by the successe of them that commit it; and the same Fact be vertuous, or vicious, as Fortune pleaseth; so that what Marius makes a Crime, Sylla shall make meritorious, and Caesar (the same Lawes standing) turn again into a Crime, to the perpetuall disturbance of the Peace of the Common-wealth.

False Teachers Mis-interpreting The Law Of Nature Secondly, by false Teachers, that either mis-interpret the Law of Nature, making it thereby repugnant to the Law Civill; or by teaching for Lawes, such Doctrines of their own, or Traditions of former times, as are inconsistent with the duty of a Subject.

And False Inferences From True Principles, By Teachers

Thirdly, by Erroneous Inferences from True Principles; which happens commonly to men that are hasty, and praecipitate 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 onely common experience, and a good naturall wit; whereof no man thinks himselfe unprovided: whereas the knowledge, of Right and Wrong, which is no lesse 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 businesse; much lesse in them that undertake a publique charge; because they pretend to the Reason, upon the want whereof they would ground their Excuse.

By Their Passions;

Of the Passions that most frequently are the causes of Crime, one, is Vain-glory, or a foolish over-rating of their own worth; as if difference of worth, were an effect of their wit, or riches, or bloud, or some other naturall quality, not depending on the Will of those that have the Soveraign Authority. From whence proceedeth a Presumption that the punishments ordained by the Lawes, and extended generally to all Subjects, ought not to be inflicted on them, with the same rigour they are inflicted on poore, obscure, and simple men, comprehended under the name of the Vulgar.

Presumption Of Riches

Therefore it happeneth commonly, that such as value themselves by the greatnesse of their wealth, adventure on Crimes, upon hope of escaping punishment, by corrupting publique Justice, or obtaining Pardon by Mony, or other rewards.

And Friends

And that such as have multitude of Potent Kindred; and popular men, that have gained reputation amongst the Multitude, take courage to violate the Lawes, from a hope of oppressing the Power, to whom it belongeth to put them in execution.

Wisedome

And that such as have a great, and false opinion of their own Wisedome, take upon them to reprehend the actions, and call in question the Authority of them that govern, and so to unsettle the Lawes with their publique discourse, as that nothing shall be a Crime, but what their own designes 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 designes are too subtile to be perceived. These I say are effects of a false presumption of their own Wisdome. For of them that are the first movers in the disturbance of Common-wealth, (which can never happen without a Civill Warre,) very few are left alive long enough, to see their new Designes established: so that the benefit of their Crimes, redoundeth to Posterity, and such as would least have wished it: which argues they were not as wise, as they thought they were. And those that deceive upon hope of not being observed, do commonly deceive themselves, (the darknesse in which they believe they lye hidden, being nothing else but their own blindnesse;) and are no wiser than Children, that think all hid, by hiding their own eyes.

And generally all vain-glorious men, (unlesse they be withall 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.

Hatred, Lust, Ambition, Covetousnesse, Causes Of Crime

As for the Passions, of Hate, Lust, Ambition, and Covetousnesse, what Crimes they are apt to produce, is so obvious to every mans 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 hindred, but by extraordinary use of Reason, or a constant severity in punishing them. For in those things men hate, they find a continuall, and unavoydable molestation; whereby either a mans patience must be everlasting, or he must be eased by removing the power of that which molesteth him; The former is difficult; the later is many times impossible, without some violation of the Law. Ambition, and Covetousnesse 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 easie, or uncertain punishments.

Fear Sometimes Cause Of Crime, As When The Danger Is Neither Present, Nor Corporeall

Of all Passions, that which enclineth men least to break the Lawes, is Fear. Nay, (excepting some generous natures,) it is the onely thing, (when there is apparence of profit, or pleasure by breaking the Lawes,) that makes men keep them. And yet in many cases a Crime may be committed through Feare.

For not every Fear justifies the Action it produceth, but the fear onely of corporeall 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 Common-wealth, to have abandoned the defence of his life, or limbes, where the Law cannot arrive time enough to his assistance. But to kill a man, because from his actions, or his threatnings, I may argue he will kill me when he can, (seeing I have time, and means to demand protection, from the Soveraign Power,) is a Crime. Again, a man receives words of disgrace, or some little injuries (for which they that made the Lawes, had assigned no punishment, nor thought it worthy of a man that hath the use of Reason, to take notice of,) and is afraid, unlesse he revenge it, he shall fall into contempt, and consequently be obnoxious to the like injuries from others; and to avoyd this, breaks the Law, and protects himselfe for the future, by the terrour of his private revenge. This is a Crime; For the hurt is not Corporeall, but Phantasticall, and (though in this corner of the world, made sensible by a custome 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 divers things, which neverthelesse, to do, or omit, is contrary to the Lawes; And that which is so done, or omitted, is not to be Excused by this fear; but is a Crime. For (as I have shewn 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 reall Visions; and therefore he that presumes to break the Law upon his own, or anothers Dream, or pretended Vision, or upon other Fancy of the power of Invisible Spirits, than is permitted by the Common-wealth, leaveth the Law of Nature, which is a certain offence, and followeth the imagery of his own, or another private mans brain, which he can never know whether it signifieth any thing, or nothing, nor whether he that tells his Dream, say true, or lye; 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 Common-wealth would be dissolved.

Crimes Not Equall

From these different sources of Crimes, it appeares already, that all Crimes are not (as the Stoicks of old time maintained) of the same allay. 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 lesse. For though all Crimes doe equally deserve the name of Injustice, as all deviation from a strait line is equally crookednesse, which the Stoicks 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 Stoicks not observing, held it as great a Crime, to kill a Hen, against the Law, as to kill ones Father.

Totall Excuses

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.

The want of means to know the Law, totally Excuseth: For the Law whereof a man has no means to enforme 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 Lawes of Nature; because they are known by the reason he pretends to: only Children, and Madmen are Excused from offences against the Law Naturall.

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 dye; 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.

If a man by the terrour of present death, be compelled to doe 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 doe it not, I die presently; if I doe it, I die afterwards; therefore by doing it, there is time of life gained;" Nature therefore compells him to the fact.

When a man is destitute of food, or other thing necessary for his life, and cannot preserve himselfe 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 obtaine for mony nor charity; or in defence of his life, snatch away another mans Sword, he is totally Excused, for the reason next before alledged.

Excuses Against The Author

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, bothe the Author, and Actor are Criminalls. From hence it followeth that when that Man, or Assembly, that hath the Soveraign 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 himselfe, because he is the Author; and what cannot justly be condemned by the Soveraign, cannot justly be punished by any other. Besides, when the Soveraign commandeth any thing to be done against his own former Law, the Command, as to that particular fact, is an abrogation of the Law.

If that Man, or Assembly, that hath the Soveraign Power, disclaime any Right essentiall to the Soveraignty, whereby there accrueth to the Subject, any liberty inconsistent with the Soveraign Power, that is to say, with the very being of a Common-wealth, if the Subject shall refuse to obey the Command in any thing, contrary to the liberty granted, this is neverthelesse a Sinne, and contrary to the duty of the Subject: for he ought to take notice of what is inconsistent with the Soveraignty, 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 evill consequence thereof. But if he not onely disobey, but also resist a publique 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.

The Degrees of Crime are taken on divers Scales, and measured, First, by the malignity of the Source, or Cause: Secondly, by the contagion of the Example: Thirdly, by the mischiefe of the Effect; and Fourthly, by the concurrence of Times, Places, and Persons.

Presumption Of Power, Aggravateth

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 Lawes; whereas in the later case, the apprehension of danger, that makes a man fly, renders him more obedient for the future. A Crime which we know to be so, is greater than the same Crime proceeding from a false perswasion that it is lawfull: 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 errour, after the errour shewn him, is conformable to the Law.

Evill Teachers, Extenuate

Hee, whose errour proceeds from the authority of a Teacher, or an Interpreter of the Law publiquely authorised, is not so faulty, as he whose errour proceedeth from a peremptory pursute of his own principles, and reasoning: For what is taught by one that teacheth by publique Authority, the Common-wealth teacheth, and hath a resemblance of Law, till the same Authority controuleth it; and in all Crimes that contain not in them a denyall of the Soveraign 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 errour thereof, to stand, or fall.

Examples Of Impunity, Extenuate

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.