第93章 OF PUNISHMENTS AND REWARDS(1)
A punishment is an evil inflicted by public 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 infer anything 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 Commonwealth every man giveth away the right of defending another,but not of defending himself.Also he obligeth himself to assist him that hath the sovereignty in the punishing of another,but of himself not.But to covenant to assist the sovereign in doing hurt to another,unless he that so covenanteth have a right to do it himself,is not to give him a right to punish.It is manifest therefore that the right which the Commonwealth (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 shown formerly that before the institution of Commonwealth,every man had a right to everything,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 Commonwealth.For the subjects did not give the sovereign that right;but only,in laying down theirs,strengthened 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 only;and,excepting the limits set him by natural law,as entire as in the condition of mere nature,and of war of every one against his neighbour.
From the definition of punishment,I infer,first,that neither private revenges nor injuries of private men can properly be styled punishment,because they proceed not from public authority.
Secondly,that to be neglected and unpreferred by the public favour is not a punishment,because no new evil is thereby on any man inflicted;he is only left in the estate he was in before.
Thirdly,that the evil inflicted by public authority,without precedent public condemnation,is not to be styled by the name of punishment,but of a hostile act,because the fact for which a man is punished ought first to be judged by public authority to be a transgression of the law.
Fourthly,that the evil inflicted by usurped power,and judges without authority from the sovereign,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 public authority.
Fifthly,that all evil which is inflicted without intention or possibility of disposing the delinquent or,by his example,other men to obey the laws is not punishment,but an act of hostility,because without such an end no hurt done is contained under that name.
Sixthly,whereas to certain actions there be annexed by nature diverse hurtful consequences;as when a man in assaulting another is himself slain or wounded;or when he falleth into sickness by the doing of some unlawful 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 contained in the name of punishment in respect of men,because it is not inflicted by the authority of man.
Seventhly,if the harm inflicted be less than the benefit of 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 less than the benefit of the transgression)it attaineth not,but worketh a contrary effect.
Eighthly,if a punishment be determined and prescribed in the law itself,and after the crime committed there be a greater punishment inflicted,the excess is not punishment,but an act of hostility.
For seeing the aim of punishment is not a revenge,but terror;and the terror of a great punishment unknown is taken away by the declaration of a less,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.
Ninthly,harm inflicted for a fact done before there was a law that forbade 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 harm inflicted before the law made is not punishment,but an act of hostility.
Tenthly,hurt inflicted on the representative of the Commonwealth is not punishment,but an act of hostility:because it is of the nature of punishment to be inflicted by public authority,which is the authority only of the representative itself.