Thomas Hobbes · Complete work
Part II, Chapter XXVIII, 2
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Ignominy, is the infliction of such Evill, as is made Dishonorable; or the deprivation of such Good, as is made Honourable by the Common-wealth. For there be some things Honorable by Nature; as the effects of Courage, Magnanimity, Strength, Wisdome, and other abilities of body and mind: Others made Honorable by the Common-wealth; as Badges, Titles, Offices, or any other singular marke of the Soveraigns favour. The former, (though they may faile by nature, or accident,) cannot be taken away by a Law; and therefore the losse of them is not Punishment. But the later, may be taken away by the publique authority that made them Honorable, and are properly Punishments: Such are degrading men condemned, of their Badges, Titles, and Offices; or declaring them uncapable of the like in time to come.
Imprisonment, is when a man is by publique Authority deprived of liberty; and may happen from two divers ends; whereof one is the safe custody of a man accused; the other is the inflicting of paine on a man condemned. The former is not Punishment; because no man is supposed to be Punisht, before he be Judicially heard, and declared guilty. And therefore whatsoever hurt a man is made to suffer by bonds, or restraint, before his cause be heard, over and above that which is necessary to assure his custody, is against the Law of Nature. But the Later is Punishment, because Evill, and inflicted by publique Authority, for somewhat that has by the same Authority been Judged a Transgression of the Law. Under this word Imprisonment, I comprehend all restraint of motion, caused by an externall obstacle, be it a House, which is called by the generall name of a Prison; or an Iland, as when men are said to be confined to it; or a place where men are set to worke, as in old time men have been condemned to Quarries, and in these times to Gallies; or be it a Chaine, or any other such impediment.
Exile, (Banishment) is when a man is for a crime, condemned to depart out of the dominion of the Common-wealth, or out of a certaine part thereof; and during a prefixed time, or for ever, not to return into it: and seemeth not in its own nature, without other circumstances, to be a Punishment; but rather an escape, or a publique commandement to avoid Punishment by flight. And Cicero sayes, there was never any such Punishment ordained in the City of Rome; but cals it a refuge of men in danger. For if a man banished, be neverthelesse permitted to enjoy his Goods, and the Revenue of his Lands, the meer change of ayr is no punishment; nor does it tend to that benefit of the Common-wealth, for which all Punishments are ordained, (that is to say, to the forming of mens wils to the observation of the Law;) but many times to the dammage of the Common-wealth. For a Banished man, is a lawfull enemy of the Common-wealth that banished him; as being no more a Member of the same. But if he be withall deprived of his Lands, or Goods, then the Punishment lyeth not in the Exile, but is to be reckoned amongst Punishments Pecuniary.
All Punishments of Innocent subjects, be they great or little, are against the Law of Nature; For Punishment is only of Transgression of the Law, and therefore there can be no Punishment of the Innocent. It is therefore a violation, First, of that Law of Nature, which forbiddeth all men, in their Revenges, to look at any thing but some future good: For there can arrive no good to the Common-wealth, by Punishing the Innocent. Secondly, of that, which forbiddeth Ingratitude: For seeing all Soveraign Power, is originally given by the consent of every one of the Subjects, to the end they should as long as they are obedient, be protected thereby; the Punishment of the Innocent, is a rendring of Evill for Good. And thirdly, of the Law that commandeth Equity; that is to say, an equall distribution of Justice; which in Punishing the Innocent is not observed.
But the Infliction of what evill soever, on an Innocent man, that is not a Subject, if it be for the benefit of the Common-wealth, and without violation of any former Covenant, is no breach of the Law of Nature. For all men that are not Subjects, are either Enemies, or else they have ceased from being so, by some precedent covenants. But against Enemies, whom the Common-wealth judgeth capable to do them hurt, it is lawfull by the originall Right of Nature to make warre; wherein the Sword Judgeth not, nor doth the Victor make distinction of Nocent and Innocent, as to the time past; nor has other respect of mercy, than as it conduceth to the good of his own People. And upon this ground it is, that also in Subjects, who deliberatly deny the Authority of the Common-wealth established, the vengeance is lawfully extended, not onely to the Fathers, but also to the third and fourth generation not yet in being, and consequently innocent of the fact, for which they are afflicted: because the nature of this offence, consisteth in the renouncing of subjection; which is a relapse into the condition of warre, commonly called Rebellion; and they that so offend, suffer not as Subjects, but as Enemies. For Rebellion, is but warre renewed.
REWARD, is either of Gift, or by Contract. When by Contract, it is called Salary, and Wages; which is benefit due for service performed, or promised. When of Gift, it is benefit proceeding from the Grace of them that bestow it, to encourage, or enable men to do them service. And therefore when the Soveraign of a Common-wealth appointeth a Salary to any publique Office, he that receiveth it, is bound in Justice to performe his office; otherwise, he is bound onely in honour, to acknowledgement, and an endeavour of requitall. For though men have no lawfull remedy, when they be commanded to quit their private businesse, to serve the publique, without Reward, or Salary; yet they are not bound thereto, by the Law of Nature, nor by the institution of the Common-wealth, unlesse the service cannot otherwise be done; because it is supposed the Soveraign may make use of all their means, insomuch as the most common Souldier, may demand the wages of his warrefare, as a debt.
The benefits which a Soveraign bestoweth on a Subject, for fear of some power, and ability he hath to do hurt to the Common-wealth, are not properly Rewards; for they are not Salaryes; because there is in this case no contract supposed, every man being obliged already not to do the Common-wealth disservice: nor are they Graces; because they be extorted by feare, which ought not to be incident to the Soveraign Power: but are rather Sacrifices, which the Soveraign (considered in his naturall person, and not in the person of the Common-wealth) makes, for the appeasing the discontent of him he thinks more potent than himselfe; and encourage not to obedience, but on the contrary, to the continuance, and increasing of further extortion.
And whereas some Salaries are certain, and proceed from the publique Treasure; and others uncertain, and casuall, proceeding from the execution of the Office for which the Salary is ordained; the later is in some cases hurtfull to the Common-wealth; as in the case of Judicature. For where the benefit of the Judges, and Ministers of a Court of Justice, ariseth for the multitude of Causes that are brought to their cognisance, there must needs follow two Inconveniences: One, is the nourishing of sutes; for the more sutes, the greater benefit: and another that depends on that, which is contention about Jurisdiction; each Court drawing to it selfe, as many Causes as it can. But in offices of Execution there are not those Inconveniences; because their employment cannot be encreased by any endeavour of their own. And thus much shall suffice for the nature of Punishment, and Reward; which are, as it were, the Nerves and Tendons, that move the limbes and joynts of a Common-wealth.
Hitherto I have set forth the nature of Man, (whose Pride and other Passions have compelled him to submit himselfe to Government;) together with the great power of his Governour, whom I compared to Leviathan, taking that comparison out of the two last verses of the one and fortieth of Job; where God having set forth the great power of Leviathan, called him King of the Proud. “There is nothing,” saith he, “on earth, to be compared with him. He is made so as not be afraid. Hee seeth every high thing below him; and is King of all the children of pride.” But because he is mortall, and subject to decay, as all other Earthly creatures are; and because there is that in heaven, (though not on earth) that he should stand in fear of, and whose Lawes he ought to obey; I shall in the next following Chapters speak of his Diseases, and the causes of his Mortality; and of what Lawes of Nature he is bound to obey.
CHAPTER XXIX. OF THOSE THINGS THAT WEAKEN, OR TEND TO THE DISSOLUTION OF A COMMON-WEALTH
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.
Disgrace is the infliction of an evil made dishonorable, or the deprivation of a good made honorable, by the Common-wealth. Some things are honorable by nature, such as the fruits of courage, magnanimity, strength, wisdom, and other abilities of body and mind; others are made honorable by the Common-wealth, such as badges, titles, offices, and other distinctive marks of the sovereign's favor. The former may fail through nature or accident, but cannot be taken away by law, and their loss is therefore not punishment. The latter can be taken away by the public authority that made them honorable, and their removal is properly punishment: as when condemned men are stripped of their badges, titles, and offices or declared ineligible for them in the future.
Imprisonment is deprivation of a man's liberty by public authority. It may serve two distinct ends: the safe custody of an accused man or the infliction of pain on a condemned man. The first is not punishment, because no man is presumed punishable before he has been heard in court and found guilty. Thus any suffering caused by bonds or restraint before his case is heard, beyond what is needed to secure his custody, is against the Law of Nature. The second is punishment, because it is an evil inflicted by public authority for something that same authority has judged a transgression of the law. By imprisonment I mean every restriction of movement caused by an external obstacle: a building, commonly called a prison; an island to which a person is confined; a workplace, as men were formerly condemned to quarries and are now condemned to galleys; or a chain or any other such impediment.
Exile or banishment is a sentence requiring a man, for a crime, to leave the dominion of the Common-wealth or some part of it, and not to return for a fixed time or forever. By itself, without other circumstances, exile seems less a punishment than an escape or a public command to evade punishment by flight. Cicero says no such punishment was ever established in the city of Rome, but calls it a refuge for men in danger. If an exile is still allowed to enjoy his goods and the income from his lands, a mere change of air is no punishment; nor does it advance the benefit to the Common-wealth for which every punishment is instituted, namely, shaping men's wills to observe the law. Indeed, it often harms the Common-wealth, for a banished man, no longer one of its members, is its lawful enemy. If his lands or goods are also taken, the punishment lies not in his exile but among pecuniary punishments.
Every punishment of innocent subjects, great or small, is against the Law of Nature. Punishment applies only to transgression of the law; there can therefore be no punishment of the innocent. It violates, first, the Law of Nature forbidding men in their acts of revenge to seek anything but some future good: no good comes to the Common-wealth from punishing the innocent. Second, it violates the law against ingratitude: Sovereign Power is originally conferred by the consent of all subjects so that they will be protected so long as they obey, and punishing the innocent repays good with evil. Third, it violates the law commanding equity, that is, the equal distribution of justice, which is not observed when the innocent are punished.
But inflicting any evil on an innocent person who is not a subject, if it benefits the Common-wealth and breaks no previous Covenant, does not violate the Law of Nature. All non-subjects are either enemies or have ceased to be enemies through some prior Covenant. Against enemies whom the Common-wealth judges capable of harming it, the original Right of Nature permits war. In war the sword does not judge, nor does the victor distinguish the guilty from the innocent in respect of past acts, nor does he show mercy except as it serves the good of his own people. On this same ground, vengeance against subjects who deliberately deny the authority of the established Common-wealth lawfully extends not only to the fathers but even to a third and fourth generation not yet born, and therefore innocent of the act for which they suffer. This offense consists in renouncing subjection, which is a relapse into the condition of war commonly called rebellion; those who commit it suffer not as subjects but as enemies. For rebellion is simply war renewed.
REWARD is either a gift or given by contract. Reward by contract is called salary or wages: a benefit due for service performed or promised. Reward as a gift is a benefit proceeding from the grace of those who give it, meant to encourage or enable men to serve them. Thus when the sovereign of a Common-wealth assigns a salary to a public office, its recipient is bound in justice to fulfill its duties; without a salary he is bound only in honor to acknowledge the favor and try to repay it. Although men have no legal remedy when commanded to set aside their private affairs to serve the public without reward or salary, they are not bound to do so by the Law of Nature or by the institution of the Common-wealth unless the service cannot be performed otherwise. The sovereign is presumed able to use all their means; accordingly even the commonest soldier may demand his wages for fighting as a debt.
Benefits that a sovereign bestows on a subject out of fear of his power and ability to harm the Common-wealth are not properly rewards. They are not salaries, since there is no contract in such a case: every man is already obliged not to harm the Common-wealth. Nor are they acts of grace, since they are extorted by fear, which ought not to affect Sovereign Power. Rather, they are sacrifices the sovereign, considered in his natural person and not as the person of the Common-wealth, makes to appease the discontent of someone he thinks more powerful than himself. They encourage not obedience but, on the contrary, continued and increasing extortion.
Some salaries are fixed and paid from the public treasury; others are uncertain and incidental, derived from carrying out the office for which the salary is assigned. The latter can harm the Common-wealth, as in the administration of justice. If the income of judges and court officers grows with the number of cases brought before them, two problems necessarily follow. One is the encouragement of lawsuits: more suits mean more income. The other, depending on the first, is contention over jurisdiction, each court drawing as many cases as it can to itself. Offices of execution have no such problems, because their holders cannot increase their employment by efforts of their own. So much will suffice concerning the nature of punishment and reward, which are, as it were, the nerves and tendons moving the limbs and joints of a Common-wealth.
So far I have set forth the nature of man, whose pride and other Passions have compelled him to submit to government, together with the great power of his ruler. I compared that ruler to Leviathan, taking the comparison from the final two verses of Job 41, where God, having described Leviathan's great power, calls him King of the Proud. “There is nothing,” he says, “on earth to be compared with him. He is made so as not to be afraid. He sees every high thing beneath him; and is King of all the children of pride.” But because he is mortal and subject to decay, like every other earthly creature, and because there is one in heaven, though none on earth, whom he should fear and whose laws he ought to obey, I shall speak in the following chapters of his diseases and the causes of his mortality, and of which Laws of Nature he is bound to obey.
CHAPTER XXIX. OF THOSE THINGS THAT WEAKEN OR TEND TO DISSOLVE A COMMON-WEALTH
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.
Disgrace is the imposition of something made dishonorable, or the removal of something the Common-wealth has made honorable. Some things are honorable by Nature, such as the effects of courage, generosity of spirit, strength, wisdom, and other abilities of body and mind. The Common-wealth makes other things honorable, such as badges, titles, offices, and other special signs of the Soveraigne's favor. Natural abilities may be lost through nature or accident, but no law can take them away. Losing them is therefore not punishment. Honors granted by the Common-wealth, however, can be taken away by the public authority that granted them. Taking them away is properly punishment. Examples include stripping convicted people of badges, titles, and offices, or declaring them ineligible for such honors in the future.
Imprisonment means being deprived of liberty by public authority. It can serve either of two purposes: keeping an accused person safely in custody or causing a convicted person to suffer. The first is not punishment, since no one should be punished before being heard in court and found guilty. Before that hearing, making someone suffer through confinement or restraints beyond what is necessary to keep them in custody violates the Law of Nature. Confinement after conviction is punishment: public authority imposes harm for something it has judged to violate the law. By imprisonment I mean every restriction on movement caused by an external obstacle. It may be a building called a prison, an island to which someone is confined, or a workplace. In the past, people were sentenced to quarries; now they are sentenced to galleys. The obstacle may also be a chain or anything similar.
Exile, or banishment, means sentencing someone for a crime to leave the Common-wealth's territory, or some part of it, and not return for a specified time or forever. By itself, without other circumstances, exile does not seem to be punishment. It seems more like an escape or a public order to flee in order to avoid punishment. Cicero says that Rome never established exile as a punishment. He calls it a refuge for people in danger. If a banished person may keep their goods and the income from their land, simply moving to a different climate is no punishment. Nor does it achieve the purpose of punishment: encouraging people to obey the law for the Common-wealth's benefit. Exile may often harm the Common-wealth instead. A banished person is no longer its member and is therefore its lawful enemy. If the person also loses land or goods, the punishment lies in that loss, not in exile, and counts as financial punishment.
Every punishment of an innocent subject, large or small, violates the Law of Nature. Only a violation of law can be punished, and an innocent person has committed none. Punishing the innocent violates, first, the Law of Nature that requires any act of revenge to aim only at some future good. Punishing the innocent can bring no good to the Common-wealth. Second, it violates the law against ingratitude. Every subject originally consents to Soveraigne Power so that it will protect them as long as they obey. Punishing an innocent subject returns evil for good. Third, it violates the law requiring equity, or an equal distribution of justice, which is absent when innocent people are punished.
But imposing harm on an innocent person who is not a subject does not break the Law of Nature if it benefits the Common-wealth and violates no earlier Covenant. People who are not subjects are either enemies or have stopped being enemies through earlier Covenants. Under the original Right of Nature, the Common-wealth may wage war against enemies it judges capable of harming it. In war, the sword does not sit in judgment. The victor does not distinguish guilty from innocent people according to what they did in the past, nor show mercy except when it serves the victor's own people. On this basis, when subjects deliberately reject the authority of the established Common-wealth, retaliation can lawfully extend beyond the fathers to the third and fourth generations, even those not yet born. Those descendants are innocent of the fathers' act, yet can suffer for it. The offense consists in rejecting subjection and returning to a state of war; this is commonly called rebellion. Those who commit it suffer as enemies, not as subjects. Rebellion is simply war resumed.
A REWARD is either a gift or something owed by contract. A contractual reward is called salary or wages: payment owed for service performed or promised. A gift is a benefit given freely to encourage people to serve or enable them to do so. Thus, when the Soveraigne of a Common-wealth sets a salary for a public office, the recipient is obliged by justice to carry out its duties. Without a salary, the person owes only an acknowledgment of the honor and an effort to repay the favor. People have no legal remedy if ordered to leave their private work and serve the public without reward or salary. But neither the Law of Nature nor the founding of the Common-wealth obliges them to do so unless the service cannot be performed otherwise. The Soveraigne is already understood to have the use of all their resources. Even an ordinary soldier may demand the wages of military service as a debt.
When a Soveraigne gives a subject benefits out of fear that the subject has the power to harm the Common-wealth, these are not properly rewards. They are not salaries, since there is no contract here: everyone is already obliged not to harm the Common-wealth. They are not freely given favors either, since fear forces them from the Soveraigne, who should not be subject to that fear. Rather, they are sacrifices that the Soveraigne makes as a private person, not as the embodiment of the Common-wealth, to calm the discontent of someone thought more powerful. They do not encourage obedience. Instead, they encourage continued and greater extortion.
Some salaries are fixed and paid from the public treasury. Others vary and come from carrying out the duties of the office. The latter can sometimes harm the Common-wealth, as in the courts. If judges and other court officers earn more as more cases come before them, two problems follow. First, lawsuits multiply because more cases mean more income. Second, courts fight over jurisdiction, each trying to take as many cases as possible. These problems do not occur in offices that carry out decisions, because their officers cannot increase their work through their own efforts. This is enough about punishment and reward. They are like the nerves and tendons that move the limbs and joints of a Common-wealth.
So far I have described human nature, whose pride and other Passions have driven people to submit to government. I have also described the great power of the ruler, whom I compared to Leviathan. I took that comparison from the last two verses of Job 41, where God describes Leviathan's great power and calls him King of the Proud: “Nothing on earth can be compared with him. He is made so that he fears nothing. He looks down on everything high, and he is king over all the children of pride.” But this ruler is mortal and subject to decay like every other earthly creature. And there is a power in heaven, though none on earth, that the ruler should fear and whose laws the ruler should obey. In the following chapters, I will discuss the diseases that cause this ruler's death and the Laws of Nature that bind him.
CHAPTER XXIX. OF THINGS THAT WEAKEN A COMMON-WEALTH OR LEAD TO ITS DISSOLUTION