Thomas Hobbes · Complete work
Part II, Chapter XXVIII, 1
Part II, Chapter XXVIII, 1 of 101. Read it here for reference, or continue through the entire work without leaving the reader.
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OF PUNISHMENTS, AND REWARDS
“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.
Fourthly, that the evill inflicted by usurped power, and Judges without Authority from the Soveraign, 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 publique Authority.
Fifthly, that all evill which is inflicted without intention, or possibility of disposing the Delinquent, or (by his example) other men, to obey the Lawes, 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, divers hurtfull consequences; as when a man in assaulting another, is himselfe slain, or wounded; or when he falleth into sicknesse by the doing of some unlawfull 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 contaned 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 lesse than the benefit, or 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 lesse that the benefit of the transgression) it attaineth not, but worketh a contrary effect.
Eighthly, If a Punishment be determined and prescribed in the Law it selfe, and after the crime committed, there be a greater Punishment inflicted, the excesse is not Punishment, but an act of hostility. For seeing the aym of Punishment is not a revenge, but terrour; and the terrour of a great Punishment unknown, is taken away by the declaration of a lesse, 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, Harme inflicted for a Fact done before there was a Law that forbad 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 Harme inflicted before the Law made, is not Punishment, but an act of Hostility.
Tenthly, Hurt inflicted on the Representative of the Common-wealth, is not Punishment, but an act of Hostility: Because it is of the nature of Punishment, to be inflicted by publique Authority, which is the Authority only of the Representative it self.
Lastly, Harme inflicted upon one that is a declared enemy, fals not under the name of Punishment: Because seeing they were either never subject to the Law, and therefore cannot transgresse it; or having been subject to it, and professing to be no longer so, by consequence deny they can transgresse it, all the Harmes that can be done them, must be taken as acts of Hostility. But in declared Hostility, all infliction of evill is lawfull. From whence it followeth, that if a subject shall by fact, or word, wittingly, and deliberatly deny the authority of the Representative of the Common-wealth, (whatsoever penalty hath been formerly ordained for Treason,) he may lawfully be made to suffer whatsoever the Representative will: For in denying subjection, he denyes such Punishment as by the Law hath been ordained; and therefore suffers as an enemy of the Common-wealth; that is, according to the will of the Representative. For the Punishments set down in the Law, are to Subjects, not to Enemies; such as are they, that having been by their own act Subjects, deliberately revolting, deny the Soveraign Power.
The first, and most generall distribution of Punishments, is into Divine, and Humane. Of the former I shall have occasion, to speak, in a more convenient place hereafter.
Humane, are those Punishments that be inflicted by the Commandement of Man; and are either Corporall, or Pecuniary, or Ignominy, or Imprisonment, or Exile, or mixt of these.
Corporall Punishment is that, which is inflicted on the body directly, and according to the intention of him that inflicteth it: such as are stripes, or wounds, or deprivation of such pleasures of the body, as were before lawfully enjoyed.
And of these, some be Capitall, some Lesse than Capitall. Capitall, is the Infliction of Death; and that either simply, or with torment. Lesse than Capitall, are Stripes, Wounds, Chains, and any other corporall Paine, not in its own nature mortall. For if upon the Infliction of a Punishment death follow not in the Intention of the Inflicter, the Punishment is not be bee esteemed Capitall, though the harme prove mortall by an accident not to be foreseen; in which case death is not inflicted, but hastened.
Pecuniary Punishment, is that which consisteth not only in the deprivation of a Summe of Mony, but also of Lands, or any other goods which are usually bought and sold for mony. And in case the Law, that ordaineth such a punishment, be made with design to gather mony, from such as shall transgresse the same, it is not properly a Punishment, but the Price of priviledge, and exemption from the Law, which doth not absolutely forbid the fact, but only to those that are not able to pay the mony: except where the Law is Naturall, or part of Religion; for in that case it is not an exemption from the Law, but a transgression of it. As where a Law exacteth a Pecuniary mulct, of them that take the name of God in vaine, the payment of the mulct, is not the price of a dispensation to sweare, but the Punishment of the transgression of a Law undispensable. In like manner if the Law impose a Summe of Mony to be payd, to him that has been Injured; this is but a satisfaction for the hurt done him; and extinguisheth the accusation of the party injured, not the crime of the offender.
Musean translation
Mouseia’s complete machine-assisted Musean translation, made directly from the complete 1651 English text (introduction, forty-seven chapters, review and conclusion) for fidelity, the author’s force and cadence, and modern clarity. Hobbes’s marginal summaries are omitted.
OF PUNISHMENTS AND REWARDS
“A punishment is an evil inflicted by public authority on a person who has done, or failed to do, something judged by that same authority to be a transgression of the law, in order that men's wills may thereby be better disposed to obedience.”
Before drawing any inference from this definition, I must answer an important question: by what door did the right or authority to punish in any case enter? For, as has been said, no man is presumed bound by Covenant not to resist violence; consequently he cannot be understood to have given another the right to lay violent hands on him. In founding a Common-wealth, each man gives up the right to defend another, but not to defend himself. He also obliges himself to assist the holder of sovereignty in punishing another, but not in punishing himself. Yet a Covenant to assist the sovereign in harming another does not give the sovereign a right to punish unless the man who makes that Covenant has the right to inflict that harm himself. It is clear, then, that the Common-wealth's right to punish—that is, the right of its representative or representatives—does not rest on any grant or gift from the subjects. But I have also shown that before the establishment of a Common-wealth, every man had a right to everything, and to do whatever he thought necessary for his own preservation, including subduing, hurting, or killing anyone for that purpose. This is the foundation of the right of punishment exercised in every Common-wealth. The subjects did not give the sovereign that right: by laying down their own, they merely strengthened him to use his as he thought fit for the preservation of them all. Thus it was not given to him but left to him, and to him alone; except for the limits imposed by Natural Law, it remains as entire as it was in the condition of mere nature and the war of every man against his neighbor.
From this definition of punishment I infer, first, that private revenge and injuries done by private persons cannot properly be called punishment, because they do not proceed from public authority.
Second, being neglected and passed over for public favor is not punishment, because no new evil is inflicted on anyone by it; he is simply left as he was before.
Third, an evil inflicted by public authority without a prior public condemnation is not properly called punishment but an act of hostility, since the act for which a man is punished must first be judged a transgression of the law by public authority.
Fourth, an evil inflicted by usurped power or by judges lacking authority from the sovereign is not punishment but an act of hostility: an act of usurped power is not authorized by the person condemned and therefore is not an act of public authority.
Fifth, any evil inflicted without the intention, or any possibility, of disposing the offender or, through his example, others to obey the laws is not punishment but an act of hostility; without that purpose the harm cannot bear the name.
Sixth, some actions have harmful consequences attached to them by nature: a man who attacks another may himself be killed or wounded, or a man may fall sick through committing an unlawful act. Such harm may be said, in relation to God, the author of nature, to have been inflicted, and therefore to be divine punishment; but in relation to men it does not fall under the name of punishment, since human authority did not inflict it.
Seventh, if the harm inflicted is less than the benefit or satisfaction that naturally follows from the crime, it does not fall within the definition: it is the price or cost of redeeming the crime rather than its punishment. Punishment by nature aims to dispose men to obey the law; when the harm is less than the benefit of transgression, it fails to attain that end and has the opposite effect.
Eighth, if a punishment is fixed and specified in the law itself, and after the crime a greater penalty is inflicted, the excess is not punishment but an act of hostility. The aim of punishment is deterrence, not revenge; once a lesser penalty has been declared, it dispels the fear of an unknown, greater one, so an unexpected addition is no part of the punishment. But where the law prescribes no punishment at all, whatever is inflicted has the character of punishment. A man about to violate a law with no specified penalty expects an unspecified, that is, an arbitrary punishment.
Ninth, harm inflicted for an act done before there was a law forbidding it is not punishment but an act of hostility. Before the law exists there can be no transgression of it; but punishment presupposes an act judged to have been a transgression of the law. Harm inflicted for an act committed before the law was made is therefore not punishment but an act of hostility.
Tenth, harm inflicted on the representative of the Common-wealth is not punishment but an act of hostility, since punishment by nature is inflicted by public authority, which belongs only to that representative himself.
Lastly, harm inflicted on a declared enemy does not fall under the name of punishment. Such enemies have either never been subject to the law and therefore cannot transgress it, or, having once been subject to it, now profess that they are not, thereby denying that they can transgress it. All harm done to them must therefore be regarded as acts of hostility. But in declared hostilities any infliction of evil is lawful. It follows that if a subject knowingly and deliberately denies, by word or deed, the authority of the representative of the Common-wealth, he may lawfully be made to suffer whatever the representative chooses, whatever penalty may previously have been prescribed for treason. For by denying subjection he disclaims the punishment prescribed by law and so suffers as an enemy of the Common-wealth, according to the will of its representative. The punishments set down in law apply to subjects, not to enemies, including those who, having made themselves subjects by their own act, deliberately revolt and deny Sovereign Power.
The first and broadest division of punishments is into divine and human. I shall have occasion to speak of the former later, in a more suitable place.
Human punishments are those inflicted at the command of man. They are corporal, pecuniary, disgrace, imprisonment, exile, or a mixture of these.
Corporal punishment is inflicted directly on the body by intention of the person inflicting it: blows, wounds, or deprivation of bodily pleasures previously enjoyed lawfully.
Some corporal punishments are capital, others less than capital. Capital punishment is the infliction of death, either alone or with torture. Punishments less than capital include blows, wounds, chains, and any other bodily pain not mortal in itself. If death follows the infliction of a punishment without being intended by the person who inflicts it, the punishment is not to be regarded as capital, even if the harm proves fatal through an unforeseen accident. In that case death was not inflicted but hastened.
Pecuniary punishment consists not only in taking away a sum of money but also in taking land or any other goods ordinarily bought and sold for money. If the law prescribing such a penalty was designed to collect money from those who transgress it, the payment is not properly punishment but the price of a privilege or exemption from a law that forbids the act only to those unable to pay. The exception is where the law is Natural Law or a part of religion: then the payment buys no exemption but follows a transgression. For example, if a law requires a monetary fine from those who take God's name in vain, paying it is not the price of permission to swear but punishment for violating a law from which no dispensation can be given. Likewise, if the law imposes a sum of money payable to an injured person, that is only compensation for the injury; it extinguishes the injured party's complaint but not the offender's crime.
Plain English translation
Mouseia’s complete Plain English edition, made independently and directly from the complete 1651 English text (introduction, forty-seven chapters, review and conclusion). Hobbes’s marginal summaries are omitted.
OF PUNISHMENTS AND REWARDS
“Punishment is harm imposed by public authority on a person who has done, or failed to do, something that the same authority judges to break the law. Its purpose is to make people more willing to obey.”
Before drawing conclusions from this definition, I must answer an important question: where did the Right or authority to punish come from? As I have explained, no one is considered bound by Covenant not to resist violence. We therefore cannot suppose that a person gave anyone else a right to use violence against them. In establishing a Common-wealth, each person gives up the right to defend another person, but not the right to defend themselves. Each also undertakes to help the Soveraigne punish others, but not to help punish themselves. Yet a Covenant to help the Soveraigne harm someone else gives the Soveraigne no Right to Punish unless the person making that Covenant already had the right to do such harm. Clearly, then, the Common-wealth's Right to Punish—that is, the right of its Representative—does not come from a grant or gift from the subjects. But I have also shown that, before the Common-wealth was established, everyone had a right to everything and to do whatever they thought necessary for their own preservation. This included overpowering, harming, or killing anyone for that purpose. This is the basis of the Right to Punish exercised in every Common-wealth. The subjects did not give this right to the Soveraigne. By laying down their own rights, they strengthened the Soveraigne's ability to use the Soveraigne's own right as they thought fit for everyone's protection. The right was thus left, not given, to the Soveraigne alone. Except for the limits imposed by the Law of Nature, it remains as complete as it was in the mere state of Nature, where everyone was at war with everyone else.
From the definition of punishment, I conclude, first, that private revenge and injuries inflicted by private people are not properly called punishment. They do not come from public authority.
Second, being overlooked and not favored for promotion by the public is not punishment. No new harm is imposed; the person remains in their previous position.
Third, harm imposed by public authority without an earlier public conviction is not punishment but a hostile act. Public authority must first judge the act for which someone is punished to be a violation of the law.
Fourth, harm imposed by someone who has seized power, or by judges who lack authority from the Soveraigne, is not punishment but a hostile act. The condemned person has not authorized the acts of someone who has seized power. Those acts therefore do not come from public authority.
Fifth, harm imposed with no intention or possibility of leading either the offender or other people, through the offender's example, to obey the laws is not punishment. It is a hostile act. Without that aim, the harm does not fit the definition.
Sixth, nature attaches harmful consequences to certain actions. Someone attacking another person may be killed or wounded themselves; someone committing an unlawful act may become sick. Since God made Nature, such harm can be said to come from God and thus to be divine punishment. But it is not punishment imposed by human beings, because no human authority imposes it.
Seventh, if the harm imposed is less than the benefit or pleasure that normally comes from the crime, it does not fit the definition of punishment. It is more like the price of committing the crime or a payment for freedom from its penalty. Punishment aims to lead people to obey the law. If the harm is smaller than the benefit of breaking it, punishment fails at that aim and instead encourages disobedience.
Eighth, if the law specifies a punishment and a greater one is imposed after the crime, the excess is not punishment but a hostile act. Punishment aims not at revenge but at deterring people through fear. Announcing a lesser punishment removes the fear of an unknown, greater one, so an unexpected addition is not part of the punishment. But if the law specifies no punishment at all, whatever is imposed counts as punishment. Anyone who sets out to break a law with no stated penalty must expect an unspecified, discretionary punishment.
Ninth, harm imposed for an act done before a law forbade it is not punishment but a hostile act. Before the law existed, no one could violate it. Punishment presupposes an act judged to have violated a law. Harm imposed for an act done before the law was made is therefore not punishment.
Tenth, harm inflicted on the Representative of the Common-wealth is not punishment but a hostile act. Punishment must be imposed by public authority, and that authority belongs only to the Representative.
Finally, harm inflicted on a declared enemy is not punishment. Such enemies were either never subject to the law, so could not violate it, or formerly were subject to it but now openly reject it and so deny that they can violate it. Any harm done to them is an act of hostility. In open hostilities, inflicting any harm is lawful. It follows that if a subject knowingly and deliberately denies the authority of the Common-wealth's Representative by word or deed, the Representative may lawfully inflict whatever suffering they choose, whatever penalty was previously prescribed for treason. By denying subjection, the person rejects the punishments set by law. They therefore suffer as an enemy of the Common-wealth, according to the Representative's will. The punishments in the law apply to subjects, not enemies. People who were once subjects by their own act but deliberately revolt and deny Soveraigne Power are enemies.
The broadest division of punishments is between divine and human punishment. I will discuss divine punishment later, where it is more appropriate.
Human punishments are imposed by human command. They take the form of bodily harm, loss of money or property, disgrace, imprisonment, exile, or a combination of these.
Bodily punishment directly affects the body, as intended by the person imposing it. Examples include blows, wounds, and being deprived of physical pleasures previously enjoyed lawfully.
Some bodily punishments are capital, and some are not. Capital punishment is death, either without or with torture. Noncapital punishments include blows, wounds, chains, and any other bodily pain not inherently fatal. If the person imposing a punishment did not intend death, it is not considered capital even if an unforeseeable accident makes the harm fatal. In that case, the punishment hastened death but did not impose it.
Financial punishment includes losing not only a sum of money but also land or any other goods normally bought and sold for money. If a law imposing a payment is designed to collect money from those who violate it, that payment is not properly a punishment. It is the price of a privilege or an exemption from the law. Such a law does not absolutely forbid the act, but forbids it to those unable to pay. There is an exception if the law is a Law of Nature or a religious law. In that case, payment cannot exempt someone from the law; the act still breaks it. For example, if a law requires people who use God's name in vain to pay a fine, paying it is not the price of permission to swear. It is punishment for breaking a law that allows no exemption. Likewise, if the law orders someone to pay money to a person they have injured, the payment only makes up for that person's loss. It ends the injured person's claim, but not the offender's crime.