Part II, Chapter XXVII, 2

From these different sources of crimes, it is already clear that not all crimes are, as the ancient Stoics maintained, of the same degree. There is room not only for excuse, by which an apparent crime is shown to be no crime at all, but also for mitigation, by which a crime that appeared great is shown to be less so. For although all crimes equally deserve the name of injustice, just as every deviation from a straight line is equally crookedness, as the Stoics rightly observed, it does not follow that all crimes are equally unjust, any more than all crooked lines are equally crooked. The Stoics, failing to observe this, held that killing a hen against the law was as great a crime as killing one's father.

Nothing can wholly excuse an act, stripping it of the nature of a crime, except something that at the same time removes the obligation of the law. For an act committed against a law that binds its author can only be a crime.

Lack of any means of knowing the law is a complete excuse: a law of which a man has no means to inform himself does not bind him. But failure to take the trouble to inquire shall not count as lack of means. Nor shall anyone who claims enough reason to govern his own affairs be supposed to lack the means to know the Laws of Nature, since they are known through the very reason he claims. Only children and people who are mentally ill are excused from offenses against Natural Law.

When a man is captive or in the enemy's power—and he is in that power when either his person or his means of living is in it—if this happens through no fault of his own, his obligation under the law ceases. He must obey the enemy or die, and consequently his obedience is no crime: when the law's protection fails, no man is bound to refrain from protecting himself by the best means he can.

If terror of immediate death compels a man to act against the law, he is wholly excused, because no law can oblige a man to abandon his own preservation. And even if such a law were binding, he would reason: “If I do not do it, I die at once; if I do it, I die later; by doing it, therefore, I gain some time to live.” Nature, then, compels him to act.

When a man lacks food or some other necessity of life and cannot preserve himself except by an act against the law—for instance, if in a great famine he takes by force or stealth food he cannot obtain for money or by charity, or snatches away another man's sword in defense of his life—he is wholly excused, for the reason just given.

Again, acts done against the law on another's authority are by that authority excused as against their author: no man should accuse, in the person of another who is merely his instrument, an act that is his own. They are not thereby excused as against an injured third party, since in violating the law both author and actor are criminals. It follows that when the man or assembly holding Sovereign Power commands a man to do something contrary to a former law, the act is wholly excused. The sovereign ought not to condemn it, being its author; and what the sovereign cannot justly condemn, no one else can justly punish. Moreover, when the sovereign commands an act against his own former law, the command repeals the law as to that particular act.

If the man or assembly holding Sovereign Power disclaims a right essential to sovereignty, thus giving a subject some liberty inconsistent with Sovereign Power—that is, with the very existence of a Common-wealth—and the subject refuses to obey a command contrary to the liberty granted, he nevertheless sins and acts against his duty. He ought to recognize what is inconsistent with sovereignty, since he established it by his own consent and for his own defense, and to recognize that an incompatible liberty was granted in ignorance of its harmful consequences. But if he not only disobeys but resists a public minister carrying out the command, his act is a crime, since he could have obtained redress through a complaint without any breach of the peace.

The degrees of crime are measured on several scales: first, by the malignity of their source or cause; second, by the contagion of their example; third, by the harm of their effect; and fourth, by the circumstances of time, place, and person.

The same unlawful act is a greater crime if it springs from confidence in one's strength, riches, or friends to resist those who execute the law than if it springs from hope of escaping discovery or fleeing. For confidence that force will ensure impunity is a root from which contempt for all laws springs at all times and under all temptations; whereas in the latter case, fear of danger that drives a man to flee makes him more obedient thereafter. A crime committed in the knowledge that it is a crime is greater than the same crime committed under the false belief that it is lawful. The man who acts against his conscience relies on his strength or some other power that encourages him to repeat the offense; but the man who acts in error conforms to the law once his error is shown him.

A man whose error proceeds from the authority of a publicly authorized teacher or interpreter of the law is less at fault than one whose error proceeds from an unyielding pursuit of his own principles and reasoning. What a person vested with public authority teaches is taught by the Common-wealth, and resembles law until the same authority corrects it; in all crimes that neither deny Sovereign Power nor violate an evident law, this affords a complete excuse. But the man who bases his actions on his private judgment must stand or fall according to its soundness or error.

The same act, if consistently punished in other people, is a greater crime than if there have been many precedents of impunity. Those precedents are so many hopes of impunity furnished by the sovereign himself; and because a man who furnishes such hope and expectation of mercy, encouraging the offender, bears some part in the offense, he cannot reasonably charge the offender with all of it.

A crime arising from a sudden Passion is not so great as the same crime arising from prolonged meditation. In the former case, the common weakness of human nature allows some mitigation; but a man who acts with premeditation has considered the law, the punishment, and the consequences for human society, all of which he has despised and set below his own appetite in committing the crime. Yet no Passion is so sudden as to excuse entirely: all the time between first learning the law and committing the act counts as time for deliberation, since a man ought through reflection on the law to correct the irregularity of his Passions.

When a law is publicly and regularly read and explained before all the people, an act against it is a greater crime than where men, without such instruction, must inquire into it with difficulty and uncertainty and at the expense of their work, relying on information from private persons. In the latter case part of the fault may be laid on common frailty; in the former there is evident negligence, which carries some contempt for Sovereign Power.

Acts expressly condemned by the law but tacitly approved by other manifest signs of the lawmaker's will are lesser crimes than the same acts condemned both by law and lawmaker. Since the lawmaker's will is law, there appear in this case two contradictory laws. That would afford a complete excuse if men were obliged to recognize the sovereign's approval from evidence other than his express command. But because punishment may follow not only from transgressing his law but also from observing it, he is partly responsible for the transgression and cannot reasonably impute the whole crime to the offender. For example, the law condemns duels and prescribes death as their punishment. On the other hand, a man who refuses a duel is exposed to contempt and scorn without remedy, and sometimes even the sovereign thinks him unworthy of a command or promotion in war. If he therefore accepts a duel, given that all men may lawfully seek the good opinion of those who hold Sovereign Power, reason requires that he not be punished rigorously, since part of the fault may be charged to the punisher. I say this not because I wish to allow private revenge or any other disobedience, but because rulers should take care not indirectly to encourage what they directly forbid. The example of princes has always governed the actions of those who see them more powerfully than the laws themselves. And though our duty is to do what they say, not what they do, that duty will never be fulfilled until God chooses to give men extraordinary, supernatural grace to follow the precept.

Again, if we compare crimes by the harm of their effects, the same act is greater when it injures many than when it injures few. Thus an act that causes harm not only now but also in the future through its example is a greater crime than one that harms only now: the former is fertile and multiplies its injury among many, while the latter is barren. For an authorized preacher to uphold doctrines contrary to the religion established in the Common-wealth is a greater fault than for a private person to do so; the same is true of living profanely or without restraint, or of committing any other irreligious act. Similarly, for a professor of law to uphold a position or do an act tending to weaken Sovereign Power is a greater crime than it is for another man. An unlawful act is likewise a greater crime in a man so renowned for wisdom that many follow his counsel or imitate his actions than in another man: such people not only commit crimes but teach them to everyone else as law. In general, crimes are magnified by the scandal they give—that is, by becoming stumbling blocks to the weak, who pay less attention to the path they themselves walk than to the light others carry before them.

Acts of hostility against the present state of the Common-wealth are also greater crimes than the same acts against private persons, since their harm extends to everyone. Such acts include betraying the Common-wealth's defenses or revealing its secrets to an enemy; attempts against its representative, whether monarch or assembly; and every effort in word or deed to diminish that representative's authority now or in the succession. The Latin name for these crimes is Crimina Laesae Majestatis; they consist in a design or act against a Fundamental Law.

Crimes that render judgments ineffective are likewise greater than injuries to one or a few persons. Taking money to give false judgment or testimony is a greater crime than otherwise cheating a man of an equal or even larger sum: not only is the person against whom the judgment goes wronged, but all judgments are made useless, and an occasion is supplied for violence and private revenge.

Robbery and embezzlement of the public treasury or revenue are also greater crimes than robbing or defrauding a private man, since to rob the public is to rob many at once.

Likewise, falsely assuming public office and counterfeiting public seals or public coin are greater crimes than impersonating a private man or counterfeiting his seal, since their fraud harms many.

Among unlawful acts against private persons, the greater crime is the one whose harm is, in the common judgment of men, more keenly felt. Accordingly:

Unlawful killing is a greater crime than any other injury short of taking life.

Killing with torture is greater than killing without it.

Mutilating a limb is greater than depriving a man of his goods.

Taking a man's goods by threat of death or wounds is greater than taking them by stealth.

Taking them by stealth is greater than obtaining them by fraudulent consent.

Violating chastity by force is greater than doing so by flattery.

Violating the chastity of a married woman is greater than doing so to an unmarried woman.

For these are the values commonly set on these acts, though some people feel a given offense more keenly than others. The law regards not individual feelings but the general inclination of mankind.

Thus the laws of the Greeks, Romans, and other ancient and modern Common-wealths have disregarded offenses taken at insulting words or gestures when they cause no harm beyond the immediate distress of the person insulted. They assume the true cause of such distress lies not in the insult, which has no hold on those conscious of their own virtue, but in the faintheartedness of the person offended.

A crime against a private man is also greatly aggravated by the person, time, and place. Killing one's parent is a greater crime than killing another person: a parent ought to receive the honor due a sovereign, though he has surrendered his power to civil law, because he originally possessed it by nature. And robbing a poor man is a greater crime than robbing a rich one, because the loss is more keenly felt by the poor man.

A crime committed at a time or place appointed for devotion is greater than one committed at another time or place, since it arises from greater contempt for the law.

Many other cases of aggravation and mitigation could be added; but from those I have set out, anyone can readily gauge the degree of any other proposed crime.

Lastly, because almost every crime injures not only some private person but also the Common-wealth, the same crime, when prosecuted in the name of the Common-wealth, is called a public crime; when prosecuted in a private person's name, a private crime. The proceedings are accordingly called public proceedings, Judicia Publica, pleas of the Crown, or private proceedings. Thus in an accusation of murder, if the accuser is a private person, the proceeding is private; if the accuser is the sovereign, it is public.

CHAPTER XXVIII. OF PUNISHMENTS AND REWARDS

These different sources of crime already show that not all crimes are equally serious, as the ancient Stoics claimed. There is room for an excuse, which shows that something that seemed a crime was no crime at all. There is also room for a reduction in blame, which shows that a crime that seemed serious was less serious. All crimes equally deserve to be called unjust, just as every departure from a straight line is a crooked line. The Stoics were right about that. But it does not follow that all crimes are equally unjust, any more than all crooked lines are equally crooked. The Stoics missed this distinction. They held that illegally killing a hen was as serious a crime as killing one's father.

Only something that removes the obligation to obey a law can completely excuse an act and make it no crime. If the person who acted was bound by the law when acting against it, the act must be a crime.

Having no way to know a law is a complete excuse, because a law that someone has no way to learn does not bind that person. But failing to make the effort to find out is not the same as having no way to know. Anyone who claims enough reason to manage their own affairs has the means to know the Laws of Nature, because reason is how those laws are known. Only children and people who cannot reason are excused for offenses against the Law of Nature.

If someone is captured or in an enemy's power through no fault of their own, their obligation under the law ends. A person is in the enemy's power when the enemy controls either their body or their means of living. They must obey the enemy or die, so obeying is no crime. When the law fails to protect someone, it cannot require them to forgo the best means of protecting themselves.

If fear of immediate death forces someone to act against the law, that person is completely excused. No law can require a person to give up self-preservation. Even if such a law were binding, the person would reason: “If I refuse, I die now. If I do it, I die later. Doing it therefore gives me more time to live.” Nature thus compels the act.

Suppose someone lacks food or something else needed to stay alive and can survive only by breaking the law. In a severe famine, for example, they may take food by force or in secret when they cannot get it through money or charity. Or they may seize another person's sword to defend their life. Such a person is completely excused for the reason just given.

An act against the law done on another person's authority is excused as against that author. No one should accuse an agent of carrying out an act that they themselves authorized. But the authority does not excuse the act as against a third person it harms. Both the author and the actor are criminals when the law is broken. It follows that if the person or assembly holding Soveraigne Power orders someone to do something contrary to an earlier law, the act is completely excused. The Soveraigne must not condemn the act, since the Soveraigne authorized it. No one else can justly punish what the Soveraigne cannot justly condemn. Besides, a Soveraigne's command against an earlier law repeals that law for this particular act.

Suppose the person or assembly holding Soveraigne Power gives up a Right essential to Soveraignty. This grants a subject a liberty incompatible with Soveraigne Power, and therefore with the very existence of a Common-wealth. If the subject refuses an order that conflicts with this liberty, that refusal is nevertheless a sin and violates the subject's duty. The subject should recognize what is incompatible with Soveraignty, since they consented to establish it for their own defense. They should also recognize that the liberty was granted through ignorance of its harmful consequences. But if the subject not only disobeys but resists a public official carrying out the order, that resistance is a crime. The subject could have sought redress by complaining without breaking the peace.

Crimes are measured on several scales. First comes the harmfulness of their source or cause; second, how likely their example is to spread; third, the harm caused by their effects; and fourth, the particular time, place, and people involved.

The same unlawful act is a greater crime if someone relies on strength, wealth, or friends to resist those enforcing the law than if they hope not to be discovered or hope to escape by fleeing. Expecting to escape punishment by force breeds contempt for all laws at every opportunity and temptation. Someone who flees out of fear of danger, on the other hand, is more likely to obey later. A crime committed with knowledge that it is a crime is greater than the same crime committed in the mistaken belief that it is lawful. A person who acts against their own conscience relies on their strength or some other power and is encouraged to do it again. Someone acting from error can obey the law once the error is pointed out.

Someone led into error by a publicly authorized teacher or interpreter of the law is less at fault than someone who stubbornly follows their own principles and reasoning. What a publicly authorized teacher teaches is taught by the Common-wealth and resembles law until the same authority corrects it. It completely excuses crimes that neither deny Soveraigne Power nor violate an obvious law. By contrast, someone who bases their actions on private judgment must stand or fall by whether that judgment is right or wrong.

The same act is a greater crime if others have consistently been punished for it than if many earlier offenders escaped punishment. Those examples of impunity amount to hopes of impunity given by the Soveraigne. Someone who gives an offender hope of mercy and encourages the offense shares in the fault. The Soveraigne cannot reasonably charge the offender with all of it.

A crime arising from a sudden Passion is less serious than the same crime arising from prolonged thought. In the first case, ordinary human weakness reduces blame. A person who acts with premeditation has considered the law, the punishment, and the consequences for human society. In committing the crime, they disregard all three in favor of their desire. But even a sudden Passion is not a complete excuse. All the time between learning the law and committing the act counts as time for deliberation. A person should reflect on the law to bring their Passions under control.

When a law is regularly read and explained publicly to everyone, breaking it is a greater crime than when people have no such instruction. Without it, they must seek information with difficulty and uncertainty, interrupting their work and relying on private individuals. Some of the fault can then be attributed to ordinary human weakness. In the first case, there is clear negligence, with some contempt for Soveraigne Power.

Some acts are expressly condemned by law but tacitly approved by the lawmaker through other clear signs of their will. Such acts are lesser crimes than acts condemned both by the law and its maker. Because the lawmaker's will is law, two conflicting laws seem to exist here. This would completely excuse the offender if people were obliged to treat signs other than the Soveraigne's explicit commands as signs of approval. But people can be punished not only for breaking the law but also for obeying it. The lawmaker thus bears part of the responsibility for breaking it and cannot reasonably attribute the whole crime to the offender. For example, the law forbids duels and makes death the penalty. Yet someone who refuses a duel faces contempt and ridicule with no remedy. The Soveraigne may even consider that person unworthy of a military command or promotion. If that person then accepts a duel, they should not reasonably be punished harshly. Everyone may lawfully seek the good opinion of those holding Soveraigne Power, and the punisher bears part of the fault. I do not say this because I want to allow private revenge or any other disobedience. I say it so rulers will take care not to give indirect encouragement to what they directly forbid. The examples set by rulers have always had more influence over those who see them than the laws themselves. Our duty is to do what rulers say, not what they do. But people will not fulfill that duty unless God gives them extraordinary, supernatural grace to follow that rule.

We can also compare crimes by the harm their effects cause. First, the same act is a greater crime if it harms many people than if it harms only a few. An act that causes harm now and sets an example causing harm in the future is therefore greater than one that harms only now. The first is a fertile crime that multiplies harm; the second is barren. It is a greater offense for an authorized preacher than for a private person to teach doctrines against the religion established in the Common-wealth. The same is true of living without religious restraint, behaving without sexual restraint, or committing any other irreligious act. Similarly, it is a greater crime for a teacher of law than for someone else to teach a principle or do an act that weakens Soveraigne Power. When someone is so well regarded for wisdom that many follow their advice or imitate their actions, their unlawful act is a greater crime than the same act by someone else. Such people not only commit a crime but teach others to treat it as lawful. Generally, crimes become greater through the scandal they cause: they become obstacles for people who look less at their own path than at the light others hold out to guide them.

Hostile acts against the current government of a Common-wealth are also greater crimes than the same acts against private people, because they harm everyone. These include betraying the Common-wealth's defenses or revealing its secrets to an enemy. They also include attacks on its Representative, whether monarch or assembly, and attempts by words or deeds to reduce that Representative's authority now or in the future. The Latin term for these crimes is Crimina Laesae Majestatis. They involve a plan or act against a fundamental law.

Crimes that make judgments ineffective are likewise greater than injuries to one or a few people. Taking money to give a false judgment or false testimony is a greater crime than cheating someone out of the same or a larger sum in another way. Such a judgment wrongs its victim, makes all judgments useless, and gives people reason to resort to force and private revenge.

Robbing or embezzling public funds or revenue is also a greater crime than robbing or defrauding a private person. Robbing the public means robbing many people at once.

Likewise, falsely assuming public office or counterfeiting public seals or coins is a greater crime than impersonating a private person or forging their seal. The fraud can harm many people.

Of unlawful acts against private people, the greater crime is the one whose harm people generally feel most strongly. Therefore:

Unlawful killing is a greater crime than any other injury, as long as the victim's life is preserved in the other case.

Killing by torture is greater than killing without it.

Cutting off a limb is greater than taking someone's goods.

Taking goods by threatening death or injury is greater than stealing them secretly.

Secret theft is greater than obtaining goods through consent secured by fraud.

Violating someone's chastity by force is greater than doing so by flattery.

Violating a married woman's chastity is greater than violating an unmarried woman's.

These are the values people commonly place on these acts, though individuals feel the same offense more or less strongly. The law considers people's general inclinations, not each individual's response.

For this reason, Greek, Roman, and other ancient and modern Common-wealths have disregarded insults by words or gestures in their laws when they cause no harm beyond the immediate distress of the person insulted. They supposed that the real cause of this distress was not the insult, which has no hold on someone aware of their own virtue, but the offended person's lack of courage.

A crime against a private person is also greatly aggravated by the person involved, the time, and the place. Killing a parent is a greater crime than killing another person. A parent should receive the honor due a Soveraigne, even if they have surrendered their power to civil law, because that power originally belonged to them by Nature. Robbing a poor person is a greater crime than robbing a rich one, because the poor person feels the loss more keenly.

A crime committed at a time or place set aside for worship is greater than one committed elsewhere or at another time, because it shows greater contempt for the law.

Many more examples of factors that increase or reduce a crime's seriousness could be added. But these examples allow anyone to judge how serious another proposed crime is.

Finally, almost every crime injures both a private person and the Common-wealth. When the accusation is made in the name of the Common-wealth, it is called a public crime; when brought in a private person's name, it is a private crime. The corresponding legal proceedings are called public proceedings, Judicia Publica or pleas of the Crown, and private proceedings. In a murder case, for example, the proceeding is private if a private person brings the accusation and public if the Soveraigne brings it.

CHAPTER XXVIII. OF PUNISHMENTS AND REWARDS