Crimes, Excuses, and Mitigating Circumstances

Sinne What

What Sin Is

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 sin is not only a violation of a law, but also any contempt for the lawmaker. Such contempt breaks all his laws at once. So sin may consist in doing something forbidden by law, speaking forbidden words, or failing to do what the law commands. It may also consist in the intention or purpose to break the law. For intending to break the law shows some contempt for the person responsible for enforcing it. Merely enjoying the thought of possessing another man’s goods, servants, or wife does not break the law, “Thou shalt not covet:” This holds if there is no intention to take them from him by force or fraud. Nor is it a sin to enjoy imagining or dreaming of someone’s death when one expects only harm and distress from that person’s life. But deciding to carry out some act aimed at that death is a sin. For a person naturally enjoys imagining something that would bring pleasure if it were real. This feeling is so deeply rooted in the nature of humans and every other living creature that condemning it as sinful would make being human a sin. This consideration has led me to think some people too harsh, both toward themselves and toward others. They maintain that the mind’s first impulses are sins, even when restrained by the fear of God. But I admit that it is safer to err on the side of such strictness than on the opposite side.

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.

A crime is a sin committed by doing or saying what the law forbids, or by failing to do what the law commands. So every crime is a sin, but not every sin is a crime. Intending to steal or kill is a sin, even if that intention never appears in words or actions. For God sees human thoughts and can hold a person accountable for them. But an intention is not a crime until something said or done reveals it. The Greeks recognized this distinction in the words amartema and egklema or aitia. The first word, translated as sin, means any departure from the law whatsoever. But the other two, translated as crime, mean only a sin that one person can accuse another of committing. But intentions never revealed by any outward act provide no grounds for human accusation. Likewise, the Latins use Peccatum, meaning sin, for every kind of departure from the law. But they use crimen only for sins that can be shown before a judge, and therefore are not merely intentions. They derive crimen from Cerno, meaning to perceive.

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.

From this relationship of sin to law, and crime to civil law, three conclusions may be drawn. First, where law ends, sin ends. But because the law of nature is eternal, breaking agreements, ingratitude, arrogance, and all acts contrary to any moral virtue can never stop being sins. Second, when civil law ends, crimes end. For when no law remains except the law of nature, there is no place for accusation. Everyone is their own judge, accused only by their own conscience and cleared by the rightness of their own intentions. Therefore, when a person's intention is right, their action is not a sin. If their intention is wrong, their action is a sin, but not a crime. Third, when sovereign power ends, crime also ends. For where there is no sovereign power, the law offers no protection. Therefore, everyone may protect themselves by their own power. For no one establishing sovereign power can be presumed to surrender the right to preserve their own body. All sovereign power was established to keep that body safe. But this applies only to those who have not themselves helped remove the power that protected them. For helping remove that power was a crime from the beginning.

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.

Every crime comes from some failure of understanding, some error in reasoning, or some sudden force of passion. A failure of understanding is ignorance. An error in reasoning is a mistaken opinion. Ignorance, in turn, has three forms: ignorance of the law, of the sovereign, and of the penalty. Ignorance of the law of nature excuses no one. Everyone who has reached the age of reason is assumed to know one rule: he should not do to others what he would not want done to himself. Therefore, wherever a man goes, anything he does against that law is a crime. Suppose a man comes here from the Indies and persuades people here to adopt a new religion. Or suppose he teaches them anything that encourages disobedience to this country's laws. However firmly he believes his teaching is true, he commits a crime and may justly be punished for it. This is not only because his teaching is false. It is also because he does something he would not approve of in someone else. He would not approve of someone going from here to the Indies and trying to change the religion there. But ignorance of civil law excuses a man in a foreign country until that law is made known to him. This is because no civil law binds him until then.

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.

Similarly, suppose a country's civil law is not explained clearly enough for a person to learn it if he chooses. If his action also does not violate the law of nature, ignorance is a valid excuse. In other cases, ignorance of civil law is no excuse.

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 sovereign authority where a man normally lives does not excuse him. This is because he ought to know the authority that has protected him there.

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.

Ignorance of the penalty excuses no one when the law has been made known. For anyone who breaks the law faces the penalty, even without knowing what the penalty is. Without fear of a penalty, a law would be nothing but empty words. Anyone who acts voluntarily accepts all the known consequences of that action. And punishment is a known consequence of breaking the laws in every state. If the law has already set the punishment, the offender is subject to that punishment. If not, the offender is subject to punishment at the lawgiver’s discretion. For someone who harms another, with no limit except their own will, should reasonably face punishment with a matching limit. That punishment should be limited only by the will of the person whose law the offender has broken.

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.

But when the law sets a penalty for a crime, the offender is exempt from any greater penalty. The same applies when a penalty has usually been imposed in similar cases. For a known punishment invites people to commit the crime if the punishment is not severe enough to deter them. People compare the benefit of their injustice with the harm of their punishment. By the necessity of human nature, they choose what seems best for themselves. Therefore, suppose they receive a harsher punishment than the law previously set, or than others received for the same crime. In that case, the law itself tempted and deceived them.

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.

No law made after an act can make that act a crime. For if the act violates the law of nature, that law already existed before the act. And a law made by human authority cannot be known before it is made, so it cannot be binding. But suppose a law forbidding an act is made before the act is committed. The person who commits the act is still subject to a penalty set afterward, for the reason just given. This applies if no lesser penalty was previously made known, either in writing or through examples.

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.

Faulty reasoning (that is, error) makes people prone to break the laws in three ways. First, people assume false principles. For example, people observe that, everywhere and in every age, unjust acts have been justified by their perpetrators’ power and victories. They see powerful men breaking through their country’s laws as though those laws were cobwebs. Only the weak and those whose undertakings have failed have been considered criminals. From these observations, people have adopted principles like these as the basis of their reasoning: “Justice is only an empty word. Whatever a man can gain through his own effort and risk belongs to him. What all nations do cannot be unjust. Examples from the past are good arguments for doing the same again.” They adopt many other principles of the same kind. If these principles are accepted, no act can be a crime in itself. Instead, an act becomes a crime not because of the law, but because of whether its perpetrators succeed. The same act becomes virtuous or vicious as fortune pleases. So what Marius makes a crime, Sylla will make praiseworthy. Then Caesar, with the same laws still in force, will make the act a crime again. This continually disrupts the peace of the commonwealth.

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.

Teachers who misinterpret the Law of Nature, making it conflict with civil law. Or teachers who present their own doctrines or past traditions as laws, when those teachings conflict with a subject’s duty.

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.

Thirdly, people draw mistaken conclusions from true principles. This commonly happens to people who rush to conclusions and hastily decide what to do. Such people think highly of their own understanding. They also believe these matters require no time or study, only ordinary experience and good natural intelligence. No one thinks they lack these qualities. Yet no one would claim to know right from wrong without long and serious study, though that knowledge is no less difficult. None of these failures in reasoning can excuse a crime committed by anyone who claims to manage their own affairs. Some may, however, make the crime less serious. Still less can these failures excuse crimes committed by those who take on public responsibilities. For such people claim to possess the very capacity to reason whose absence they would offer as their excuse.

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.

One of the passions that most often cause crime is vanity, or a foolish overestimation of one's own worth. Vain people act as if differences in worth came from intelligence, wealth, ancestry, or some other natural quality. They act as if these differences did not depend on the will of those who hold sovereign power. This leads vain people to assume that punishments established by law for all subjects should be less harsh for them. They believe they should not be punished as severely as poor, obscure, and uneducated people, collectively called the common people.

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.

Therefore, people who measure their worth by their great wealth often risk committing crimes in hopes of escaping punishment. They hope to corrupt public justice or obtain a pardon through money or other rewards.

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.

And people with many powerful relatives, along with popular figures who have earned the crowd’s respect, dare to break the law. They do so because they hope to overpower the authority responsible for enforcing the laws.

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 people with a high but false opinion of their own wisdom take it upon themselves to criticize their rulers’ actions. They question their rulers’ authority and undermine the laws through public debate. They would have nothing count as a crime unless their own plans required it. These same people are also prone to all crimes involving cunning and deceiving their neighbors. They believe their plans are too clever to be detected. These, I say, are the effects of falsely assuming their own wisdom. For very few who first stir up unrest in a commonwealth live long enough to see their new plans established. Such unrest can never occur without civil war. So the benefits of their crimes go to later generations and to those they would least have wished to benefit. This shows that these troublemakers were not as wise as they thought. And those who deceive others in the hope of escaping notice commonly deceive themselves. The darkness they think conceals them is nothing but their own blindness. They are no wiser than children who think everything is hidden when they cover 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.

And in general, all vain men are prone to anger unless they are also timid. This is because they are more likely than others to take the normal freedom of conversation as contempt. And there are few crimes that anger cannot cause.

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.

The crimes that hatred, lust, ambition, and greed tend to produce are obvious from everyone’s experience and understanding. Nothing more needs saying about these passions, except that they are weaknesses rooted in human nature and all other living creatures. Their effects can be prevented only through exceptional use of reason or consistently severe punishment. For whatever people hate causes them constant, unavoidable distress. So either their patience must last forever, or they must find relief by removing the source’s power to trouble them. Endless patience is difficult. Removing that power is often impossible without some violation of the law. Ambition and greed also exert constant pressure, while reason is not always present to resist these passions. So whenever there is hope of escaping punishment, these passions produce their effects. As for lust, what it lacks in duration, it makes up for in intensity. That intensity is enough to outweigh the fear of any mild or uncertain punishment.

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.

Of all emotions, fear is the least likely to lead people to break the law. In fact, except for some noble people, fear alone makes people obey the law when breaking it seems profitable or pleasurable. Yet in many cases, a crime may be committed out of fear.

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.

Not every fear justifies the action it causes. Only fear of physical harm, which we call bodily fear, can do so. And the person must see no way to escape that harm except through the action. A man is attacked and fears immediate death. He sees no way to escape except by wounding his attacker. If he wounds the attacker fatally, he commits no crime. For no one is assumed to have given up defending his life or limbs when establishing a commonwealth. This right remains when the law cannot come to his aid in time. But suppose I infer from a man's actions or threats that he will kill me when he can. If I have time and means to seek protection from the sovereign power, killing him is a crime. Again, a man may suffer insults or minor injuries for which the lawmakers have set no punishment. The lawmakers have also considered such offenses unworthy of notice by anyone capable of reason. The man fears that, unless he takes revenge, others will despise him and consequently subject him to similar injuries. To prevent this, he breaks the law, using the terror of his private revenge to protect himself against future offenses. This is a crime, because the harm is not physical but imaginary. In this part of the world, a custom begun only a few years ago among young, vain men makes such harm felt. Yet the harm is so slight that an honorable man, confident in his own courage, cannot take notice of it. A man may also fear spirits, either through his own superstition or through trusting others too much. These others tell him of strange dreams and visions. He may consequently believe that spirits will harm him for doing or failing to do certain things. Yet doing or failing to do those things may violate the laws. Fear of spirits does not excuse such actions or failures to act. They are crimes. For, as I have shown before in the second chapter, dreams are naturally only images that remain during sleep. These images come from impressions our senses previously received while we were awake. When people happen to be unsure whether they have slept, their dreams seem to be real visions. A person may presume to break the law because of his own dream, another person's dream, or a supposed vision. Or he may act on some other imagined power of invisible spirits beyond what the commonwealth permits. In doing so, he abandons the law of nature, which is certainly an offense. Instead, he follows images in his own mind or another private person's mind. He can never know whether those images mean anything at all. Nor can he know whether someone recounting a dream is telling the truth or lying. If every private person were allowed to act this way, no law could remain binding. And under the law of nature, everyone must have this permission if anyone has it. The result would be the collapse of every commonwealth.

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.

These different sources of crime already show that not all crimes are of the same kind, as the ancient Stoics claimed. There is room not only for EXCUSE, which proves that an apparent crime was no crime at all. There is also room for EXTENUATION, which makes a seemingly serious crime less serious. For although all crimes equally deserve to be called unjust, not all crimes are equally unjust. Every departure from a straight line is equally a form of crookedness, as the Stoics rightly observed. But just as not all crooked lines are equally crooked, not all crimes are equally unjust. The Stoics failed to recognize this distinction. So they held that killing a hen against the law was as great a crime as killing one's father.

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.

Only something that also removes the obligation to obey the law can fully excuse an act and make it no crime. For if someone breaks the law while bound to obey it, that act can only be 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.

Having no way to learn the law is a complete excuse for breaking it. For a law is not binding on someone who has no way to learn it. But failing to make an effort to find out does not count as having no way to learn. Nor can anyone who claims enough reason to manage their own affairs be considered unable to know the laws of nature. For those laws are known through the very reason that person claims to have. Only children and people who are insane are excused from offenses against natural law.

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.

A man may be held captive or be under an enemy’s control. (He is under the enemy’s control when the enemy controls his person or his means of making a living.) If he is in this position through no fault of his own, his obligation to obey the law ends. This is because he must obey the enemy or die, so obeying the enemy is no crime. For when the law no longer protects a man, he has no duty to forgo protecting himself however 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.

If fear of immediate death forces a man to break the law, he is completely excused. This is because no law can require a man to give up preserving his own life. And even if such a law were binding, a man would reason this way: “If I do not act, I die now. If I act, I die later. Therefore, by acting, I gain time to live.” Nature therefore forces him to act.

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.

When a man lacks food or anything else necessary to live, he may have no way to survive without breaking the law. For example, during a great famine, he might take food by force or theft if neither money nor charity can secure it. Or he might snatch another man’s sword to defend his own life. If he has no other way to survive, he is completely excused, for the reason just given.

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.

Again, unlawful acts done on another person’s authority are excused as far as that person is concerned. This is because no one should accuse another of doing what they themselves authorized, when the other merely acted as their instrument. But that authority does not excuse the act against an injured third party. This is because both the person who authorized the act and the person who performed it have broken the law. It follows that an act is entirely excused when the sovereign person or assembly orders someone to violate an earlier law. For the sovereign should not condemn the act, because the sovereign authorized it. And no one else can justly punish an act that the sovereign cannot justly condemn. Besides, when the sovereign orders an act contrary to an earlier law of their own, the order repeals that law for that particular act.

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.

Suppose the person or assembly holding sovereign power gives up a right essential to sovereignty. As a result, a subject gains a freedom incompatible with sovereign power, and therefore with the commonwealth’s very existence. If the subject refuses to obey a command that conflicts with the freedom granted, his refusal is still a sin. His refusal also violates his duty as a subject. For he ought to recognize what is incompatible with sovereignty, because sovereignty was established with his consent and for his protection. He should also recognize that such an incompatible freedom was granted in ignorance of its harmful consequences. But if he not only disobeys but also resists a public official carrying out the command, he commits a crime. For he could have obtained redress by making a complaint, without any breach of the peace.

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.

The seriousness of a crime is measured in several ways. First, by how malicious its source or cause is. Second, by how likely its example is to spread. Third, by the harm it causes. Fourth, by the combination of time, place, and people involved.

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.

The same illegal act is a greater crime if someone commits it expecting to resist those who enforce the law. Such confidence may rest on strength, wealth, or friends. The crime is less serious if someone merely hopes to avoid discovery or escape by fleeing. For confidence in escaping punishment through force breeds contempt for all laws, at all times and under every temptation. But fear of danger, which makes someone flee, makes that person more obedient in the future. A crime committed knowingly is greater than the same crime committed under the mistaken belief that it is lawful. For someone who acts against their own conscience relies on their strength or some other power. That confidence encourages them to commit the same crime again. But someone who acts by mistake obeys the law once the mistake is explained to them.

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.

Someone whose error comes from following an officially authorized teacher or interpreter of the law is less at fault. They are less blameworthy than someone whose error comes from stubbornly pursuing their own principles and reasoning. For whatever an officially authorized teacher teaches is taught by the Commonwealth itself. Such teaching has something of the force of law until the same authority overrules it. Following such teaching fully excuses all crimes that neither deny the Sovereign Power nor violate a clear law. By contrast, someone who bases their actions on their own judgment must stand or fall according to that judgment’s correctness.

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.

The same act is a greater crime if others have consistently been punished for it than if many have gone unpunished. For each example of someone going unpunished gives others hope of escaping punishment, offered by the sovereign himself. And anyone who encourages a person to offend by giving them hope and an expectation of mercy shares the blame. Because the sovereign shares the blame, he cannot reasonably hold the offender wholly responsible.

A Crime arising from a sudden Passion, is not so great, as when the same ariseth from long meditation: For in the former case there is a place for Extenuation, in the common infirmity of humane nature: but he that doth it with praemeditation, has used circumspection, and cast his eye, on the Law, on the punishment, and on the consequence thereof to humane society; all which in committing the Crime, hee hath contemned, and postposed to his own appetite. But there is no suddennesse of Passion sufficient for a totall Excuse: For all the time between the first knowing of the Law, and the Commission of the Fact, shall be taken for a time of deliberation; because he ought by meditation of the Law, to rectifie the irregularity of his Passions.

A crime committed in a sudden passion is less serious than the same crime committed after long thought. For in the first case, the weakness common to human nature offers grounds for leniency. But someone who plans a crime has carefully considered the law, the punishment, and the consequences for human society. In committing the crime, that person has dismissed all these concerns and put personal desire above them. But no passion, however sudden, can fully excuse a crime. For all the time between first learning the law and committing the crime must count as time for deliberation. This is because the offender should have reflected on the law to bring unruly passions under control.

Where the Law is publiquely, and with assiduity, before all the people read, and interpreted; a fact done against it, is a greater Crime, than where men are left without such instruction, to enquire of it with difficulty, uncertainty, and interruption of their Callings, and be informed by private men: for in this case, part of the fault is discharged upon common infirmity; but in the former there is apparent negligence, which is not without some contempt of the Soveraign Power.

Where the law is regularly read and explained publicly before all the people, breaking the law is a greater crime. It is less serious where people receive no such instruction and must struggle to learn the law from private individuals. Their search is difficult and uncertain, and interrupts their work. In the latter case, ordinary human weakness excuses part of the fault. But in the former case, there is clear negligence, showing some contempt for the sovereign power.

Those facts which the Law expresly condemneth, but the Law-maker by other manifest signes of his will tacitly approveth, are lesse Crimes, than the same facts, condemned both by the Law, and Lawmaker. For seeing the will of the Law-maker is a Law, there appear in this case two contradictory Lawes; which would totally Excuse, if men were bound to take notice of the Soveraigns approbation, by other arguments, than are expressed by his command. But because there are punishments consequent, not onely to the transgression of his Law, but also to the observing of it, he is in part a cause of the transgression, and therefore cannot reasonably impute the whole Crime to the Delinquent. For example, the Law condemneth Duells; the punishment is made capitall: On the contrary part, he that refuseth Duell, is subject to contempt and scorne, without remedy; and sometimes by the Soveraign himselfe thought unworthy to have any charge, or preferment in Warre: If thereupon he accept Duell, considering all men lawfully endeavour to obtain the good opinion of them that have the Soveraign Power, he ought not in reason to be rigorously punished; seeing part of the fault may be discharged on the punisher; which I say, not as wishing liberty of private revenges, or any other kind of disobedience; but a care in Governours, not to countenance any thing obliquely, which directly they forbid. The examples of Princes, to those that see them, are, and ever have been, more potent to govern their actions, than the Lawes themselves. And though it be our duty to do, not what they do, but what they say; yet will that duty never be performed, till it please God to give men an extraordinary, and supernaturall grace to follow that Precept.

Acts that the law expressly condemns are less serious crimes if the lawmaker silently approves them through other clear signs. They are more serious if both the law and the lawmaker condemn them. Since the lawmaker’s will is law, two contradictory laws appear to exist in the first case. This contradiction would excuse the offender entirely if people were required to recognize the sovereign’s approval from signs beyond his commands. But punishments follow not only from breaking his law, but also from obeying it. He is therefore partly responsible for the violation and cannot reasonably place the whole blame on the offender. For example, the law condemns duels and makes them punishable by death. Yet anyone who refuses a duel faces contempt and scorn, with no means of redress. Sometimes the sovereign himself considers such a person unworthy of any military command or promotion. If someone accepts a duel under these circumstances, he should not reasonably be punished harshly. For all people lawfully seek the good opinion of those who hold sovereign power. And part of the blame may fall on the person imposing the punishment. I say this not because I want people free to take private revenge or disobey in any other way. Rather, I want rulers to take care not to encourage indirectly anything they directly forbid. For those who witness them, the examples set by princes are, and always have been, more powerful than laws in guiding conduct. Our duty is to do not what princes do, but what they say. Yet that duty will never be fulfilled unless God chooses to give people extraordinary, supernatural grace to follow that rule.

Again, if we compare Crimes by the mischiefe of their Effects, First, the same fact, when it redounds to the dammage of many, is greater, than when it redounds to the hurt of few. And therefore, when a fact hurteth, not onely in the present, but also, (by example) in the future, it is a greater Crime, than if it hurt onely in the present: for the former, is a fertile Crime, and multiplyes to the hurt of many; the later is barren. To maintain doctrines contrary to the Religion established in the Common-wealth, is a greater fault, in an authorised Preacher, than in a private person: So also is it, to live prophanely, incontinently, or do any irreligious act whatsoever. Likewise in a Professor of the Law, to maintain any point, on do any act, that tendeth to the weakning of the Soveraign Power, as a greater Crime, than in another man: Also in a man that hath such reputation for wisedome, as that his counsells are followed, or his actions imitated by many, his fact against the Law, is a greater Crime, than the same fact in another: For such men not onely commit Crime, but teach it for Law to all other men. And generally all Crimes are the greater, by the scandall they give; that is to say, by becoming stumbling-blocks to the weak, that look not so much upon the way they go in, as upon the light that other men carry before them.

Again, if we compare crimes by the harm they cause, the same act is worse when it harms many rather than few. Therefore, an act that causes harm now and, through its example, in the future is a greater crime. It is worse than an act that causes harm only in the present. The first crime is fertile, multiplying harm to many people. The second is barren. Promoting teachings contrary to the religion established in the commonwealth is a greater offense in an authorized preacher than in a private person. The same is true of living irreverently or without sexual restraint, or committing any irreligious act. Likewise, a legal scholar commits a greater crime than another person by defending any position that weakens sovereign power. The same applies to any action by a legal scholar that tends to weaken that power. Also, consider someone whose reputation for wisdom leads many people to follow his advice or imitate his actions. When such a person breaks the law, his crime is greater than the same act committed by someone else. For such people not only commit crimes but also teach everyone else to regard those crimes as lawful. And, in general, all crimes are greater because of the bad example they set. Such examples become stumbling blocks for the weak. These people pay less attention to their own path than to the light others carry ahead of them.

Also Facts of Hostility against the present state of the Common-wealth, are greater Crimes, than the same acts done to private men; For the dammage extends it selfe to all: Such are the betraying of the strengths, or revealing of the secrets of the Common-wealth to an Enemy; also all attempts upon the Representative of the Common-wealth, be it a monarch, or an Assembly; and all endeavours by word, or deed to diminish the Authority of the same, either in the present time, or in succession: which Crimes the Latines understand by Crimina Laesae Majestatis, and consist in designe, or act, contrary to a Fundamentall Law.

Also, acts of hostility against the commonwealth’s existing government are greater crimes than the same acts committed against private individuals. This is because the harm extends to everyone. Such crimes include handing over the commonwealth’s fortifications to an enemy or revealing its secrets to an enemy. They also include all attacks on the commonwealth’s representative, whether a monarch or an assembly. They include all efforts, through words or actions, to weaken that representative’s authority, either now or in the succession. The Latins call these crimes Crimina Laesae Majestatis. These crimes consist of plans or actions that violate a fundamental law.

Likewise those Crimes, which render Judgements of no effect, are greater Crimes, than Injuries done to one, or a few persons; as to receive mony to give False judgement, or testimony, is a greater Crime, than otherwise to deceive a man of the like, or a greater summe; because not onely he has wrong, that falls by such judgements; but all Judgements are rendered uselesse, and occasion ministred to force, and private revenges.

Likewise, crimes that make court judgments ineffective are greater than wrongs done to one person or a few people. For example, accepting money to give a false judgment or false testimony is a greater crime than ordinary fraud. This remains true even if the fraud cheats someone out of the same amount or more. The reason is that false judgments harm not only the person who suffers from them. They also make all judgments useless and encourage violence and private revenge.

Also Robbery, and Depeculation of the Publique treasure, or Revenues, is a greater Crime, than the robbing, or defrauding of a Private man; because to robbe the publique, is to robbe many at once.

Also, stealing or embezzling public funds or revenues is a greater crime than robbing or defrauding a private person. This is because robbing the public means robbing many people at once.

Also the Counterfeit usurpation of publique Ministery, the Counterfeiting of publique Seales, or publique Coine, than counterfeiting of a private mans person, or his seale; because the fraud thereof, extendeth to the dammage of many.

Also, falsely claiming public office or counterfeiting public seals or coins is worse than impersonating a private individual or forging his seal. This is because fraud involving public authority harms many people.

Of facts against the Law, done to private men, the greater Crime, is that, where the dammage in the common opinion of men, is most sensible. And therefore

Of unlawful acts against private individuals, the greater crime is the one whose harm people generally consider most deeply felt. And therefore

To kill against the Law, is a greater Crime, that any other injury, life preserved.

Unlawful killing is a greater crime than any other injury that leaves the victim alive.

And to kill with Torment, greater, than simply to kill.

And killing with torture is worse than simply killing.

And Mutilation of a limbe, greater, than the spoyling a man of his goods.

And mutilating a limb is worse than robbing a man of his possessions.

And the spoyling a man of his goods, by Terrour of death, or wounds, than by clandestine surreption.

And taking a man's possessions by threatening death or injury, rather than by stealing them secretly.

And by clandestine Surreption, than by consent fraudulently obtained.

And by secret seizure, than by consent obtained through fraud.

And the violation of chastity by Force, greater, than by flattery.

And violating someone's chastity by force is worse than doing so through flattery.

And of a woman Married, than of a woman not married.

And of a married woman than of an unmarried woman.

For all these things are commonly so valued; though some men are more, and some lesse sensible of the same offence. But the Law regardeth not the particular, but the generall inclination of mankind.

For all these things are generally valued this way, though some people feel the same offense more strongly than others. But the law considers not individual reactions, but the general tendencies of humanity.

And therefore the offence men take, from contumely, in words, or gesture, when they produce no other harme, than the present griefe of him that is reproached, hath been neglected in the Lawes of the Greeks, Romans, and other both antient, and moderne Common-wealths; supposing the true cause of such griefe to consist, not in the contumely, (which takes no hold upon men conscious of their own Vertue,) but in the Pusillanimity of him that is offended by it.

Therefore, the laws of the Greeks, Romans, and other ancient and modern states have disregarded offense caused by insulting words or gestures. This applies when the insults cause no harm beyond the immediate distress of the person insulted. These laws assume that the true cause of such distress is not the insult. Insults have no effect on people aware of their own virtue. Rather, these laws attribute the distress to the offended person's lack of courage.

Also a Crime against a private man, is much aggravated by the person, time, and place. For to kill ones Parent, is a greater Crime, than to kill another: for the Parent ought to have the honour of a Soveraign, (though he have surrendred his Power to the Civill Law,) because he had it originally by Nature. And to Robbe a poore man, is a greater Crime, than to robbe a rich man; because ’tis to the poore a more sensible dammage.

Also, a crime against a private person is made much more serious by the person, time, and place involved. For killing your own parent is a greater crime than killing someone else. A parent deserves the honor due to a sovereign, even though the parent has surrendered that power to civil law. This is because the parent originally held that power by nature. And robbing a poor person is a greater crime than robbing a rich person, because the poor person suffers more harm.

And a Crime committed in the Time, or Place appointed for Devotion, is greater, than if committed at another time or place: for it proceeds from a greater contempt of the Law.

And a crime committed at a time or place set aside for worship is more serious than one committed elsewhere or at another time. This is because such a crime shows greater contempt for the law.

Many other cases of Aggravation, and Extenuation might be added: but by these I have set down, it is obvious to every man, to take the altitude of any other Crime proposed.

Many other examples of factors that make crimes more or less serious could be added. But the examples I have given make it clear to everyone how to judge the seriousness of any other crime.

Lastly, because in almost all Crimes there is an Injury done, not onely to some Private man, but also to the Common-wealth; the same Crime, when the accusation is in the name of the Common-wealth, is called Publique Crime; and when in the name of a Private man, a Private Crime; And the Pleas according thereunto called Publique, Judicia Publica, Pleas of the Crown; or Private Pleas. As in an Accusation of Murder, if the accuser be a Private man, the plea is a Private plea; if the accuser be the Soveraign, the plea is a Publique plea.

Lastly, almost all crimes harm not only a private individual but also the commonwealth. Because of this, the same crime is called public when the accusation is made in the commonwealth’s name. When the accusation is made in a private individual’s name, the crime is called private. The corresponding legal proceedings are called public proceedings (Judicia Publica, or Pleas of the Crown) or private proceedings. For example, in a murder accusation, if the accuser is a private individual, the proceeding is private. If the accuser is the sovereign, the proceeding is public.