Front Page Titles (by Subject) CHAPTER XXVIII.: of punishments and rewards. - The English Works, vol. III (Leviathan)
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CHAPTER XXVIII.: of punishments and rewards. - Thomas Hobbes, The English Works, vol. III (Leviathan) 
The English Works of Thomas Hobbes of Malmesbury; Now First Collected and Edited by Sir William Molesworth, Bart., (London: Bohn, 1839-45). 11 vols. Vol. 3.
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of punishments and rewards.
The definition of punishment.
A punishment,is an evil inflicted by public authority, on him that hath done, or omitted that which is judged by the same authority to be a transgression of the law; to the end that the will of men may thereby the better be disposed to obedience.
Right to punish whence derived
Before I infer 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 commonwealth, every man giveth away the right of defending another; but not of defending himself. Also he obligeth himself, to assist him that hath the sovereignty, in the punishing of another; but of himself not. But to covenant to assist the sovereign, in doing hurt to another, unless he that so covenanteth have a right to do it himself, is not to give him a right to punish. It is manifest therefore that the right which the commonwealth, that is, he, or they that represent it, hath to punish, is not grounded on any concession, or gift of the subjects. But I have also showed formerly, that before the institution of commonwealth, 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 commonwealth. For the subjects did not give the sovereign that right; but only in laying down theirs, strengthened him to use his own, as he should think fit, for the preservation of them all: so that it was not given, but left to him, and to him only; and (excepting the limits set him by natural law) as entire, as in the condition of mere nature, and of war of every one against his neighbour.
Private injuries & revenges no punishments.
From the definition of punishment, I infer, first, that neither private revenges, nor injuries of private men, can properly be styled punishment; because they proceed not from public authority.
Nor denial of preferment;
Secondly, that to be neglected, and unpreferred by the public favour, is not a punishment; because no new evil is thereby on any man inflicted; he is only left in the estate he was in before.
Nor pain inflicted without public hearing;
Thirdly, that the evil inflicted by public authority, without precedent public condemnation, is not to be styled 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 public authority, to be a transgression of the law.
Nor pain inflicted by usurped power;
Fourthly, that the evil inflicted by usurped power, and judges without authority from the sovereign, is not punishment; but an act of hostility; because the acts of power usurped, have not for author, the person condemned; and therefore are not acts of public authority.
Nor pain inflicted without respect to the future good.
Fifthly, that all evil which is inflicted without intention, or possibility of disposing the delinquent, or, by his example, other men, to obey the laws, is not punishment; but an act of hostility: because without such an end, no hurt done is contained under that name.
Natural evil consequences no punishments.
Sixthly, whereas to certain actions, there be annexed by nature, divers hurtful consequences; as when a man in assaulting another, is himself slain, or wounded; or when he falleth into sickness by the doing of some unlawful act; such hurt, though in respect of God, who is the author of nature, it may be said to be inflicted, and therefore a punishment divine; yet it is not contained in the name of punishment in respect of men, because it is not inflicted by the authority of man.
Hurt inflicted, if less than the benefit of transgressing, is not punishment.
Seventhly, if the harm inflicted be less 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 less than the benefit of the transgression, it attaineth not, but worketh a contrary effect.
Where the punishment is annexed to the law, a greater hurt is not punishment, but hostility.
Eighthly, if a punishment be determined and prescribed in the law itself, and after the crime committed, there be a greater punishment inflicted, the excess is not punishment, but an act of hostility. For seeing the aim of punishment is not a revenge, but terror; and the terror of a great punishment unknown, is taken away by the declaration of a less, the unexpected addition is no part of the punishment. But where there is no punishment at all determined by the law, there whatsoever is inflicted, hath the nature of punishment. For he that goes about the violation of a law, wherein no penalty is determined, expecteth an indeterminate, that is to say, an arbitrary punishment.
Hurt inflicted for a fact done before the law, no punishment.
Ninthly, harm inflicted for a fact done before there was a law that forbade it, is not punishment, but an act of hostility: for before the law, there is no transgression of the law: but punishment supposeth a fact judged, to have been a transgression of the law; therefore harm inflicted before the law made, is not punishment, but an act of hostility.
The representative of the commonwealth unpunishable.
Tenthly, hurt inflicted on the representative of the commonwealth, is not punishment, but an act of hostility: because it is of the nature of punishment, to be inflicted by public authority, which is the authority only of the representative itself.
Hurt to revolted subjects is done by right of war, not by way of punishment.
Lastly, harm inflicted upon one that is a declared enemy, falls not under the name of punishment: because seeing they were either never subject to the law, and therefore cannot transgress it; or having been subject to it, and professing to be no longer so, by consequence deny they can transgress it, all the harms that can be done them, must be taken as acts of hostility. But in declared hostility, all infliction of evil is lawful. From whence it followeth, that if a subject shall by fact, or word, wittingly, and deliberately deny the authority of the representative of the commonwealth (whatsoever penalty hath been formerly ordained for treason) he may lawfully be made to suffer whatsoever the representative will. For in denying subjection, he denies such punishment as by the law hath been ordained; and therefore suffers as an enemy of the commonwealth; 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 acts subjects, deliberately revolting, deny the sovereign power.
The first, and most general distribution of punishments, is into divine, and human. Of the former I shall have occasion to speak, in a more convenient place hereafter.
Human, are those punishments that be inflicted by the commandment of man; and are either corporal, or pecuniary, or ignominy, or imprisonment, or exile, or mixed of these.
Corporal 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 capital, some less than capital. Capital, is the infliction of death; and that either simply, or with torment. Less than capital, are stripes, wounds, chains, and any other corporal pain, not in its own nature mortal. For if upon the infliction of a punishment death follow not in the intention of the inflictor, the punishment is not to be esteemed capital, though the harm prove mortal 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 sum of money, but also of lands, or any other goods which are usually bought and sold for money. And in case the law, that ordaineth such a punishment, be made with design to gather money, from such as shall transgress the same, it is not properly a punishment, but the price of privilege and exemption from the law, which doth not absolutely forbid the fact, but only to those that are not able to pay the money: except where the law is natural, 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 vain, the payment of the mulct, is not the price of a dispensation to swear, but the punishment of the transgression of a law indispensable. In like manner if the law impose a sum of money to be paid, 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.
Ignominy, is the infliction of such evil, as is made dishonourable; or the deprivation of such good, as is made honourable by the commonwealth. For there be some things honourable by nature; as the effects of courage, magnanimity, strength, wisdom, and other abilities of body and mind: others made honourable by the commonwealth; as badges, titles, offices, or any other singular mark of the sovereign’s favour. The former, though they may fail by nature, or accident, cannot be taken away by a law; and therefore the loss of them is not punishment. But the latter, may be taken away by the public authority that made them honourable, and are properly punishments: such are degrading men condemned, of their badges, titles, and offices; or declaring them incapable of the like in time to come.
Imprisonment, is when a man is by public 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 pain on a man condemned. The former is not punishment; because no man is supposed to be punished, 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 latter is punishment, because evil, and inflicted by public 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 external obstacle, be it a house, which is called by the general name of a prison; or an island, as when men are said to be confined to it; or a place where men are set to work, as in old time men have been condemned to quarries, and in these times to galleys; or be it a chain, or any other such impediment.
Exile (banishment) is when a man is for a crime, condemned to depart out of the dominion of the commonwealth, or out of a certain 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 public commandment to avoid punishment by flight. And Cicero says, there was never any such punishment ordained in the city of Rome; but calls it a refuge of men in danger. For if a man banished, be nevertheless permitted to enjoy his goods, and the revenue of his lands, the mere change of air is no punishment, nor does it tend to that benefit of the commonwealth, for which all punishments are ordained, that is to say, to the forming of men’s wills to the observation of the law; but many times to the damage of the commonwealth. For a banished man, is a lawful enemy of the commonwealth that banished him; as being no more a member of the same. But if he be withal deprived of his lands, or goods, then the punishment lieth not in the exile, but is to be reckoned amongst punishments pecuniary.
The punishment of innocent subjects is contrary to the law of nature.
All punishments of innocent subjects, be they great or little, are against the law of nature; for punishment is only for 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 anything but some future good: for there can arrive no good to the commonwealth, by punishing the innocent. Secondly, of that, which forbiddeth ingratitude: for seeing all sovereign 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 rendering of evil for good. And thirdly, of the law that commandeth equity; that is to say, an equal distribution of justice; which in punishing the innocent is not observed.
But the harm done to innocents in war not so.Nor that which is done to declared rebels.
But the infliction of what evil soever, on an innocent man, that is not a subject, if it be for the benefit of the commonwealth, 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 commonwealth judgeth capable to do them hurt, it is lawful by the original right of nature to make war; 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 deliberately deny the authority of the commonwealth established, the vengeance is lawfully extended, not only 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 relpase into the condition of war, commonly called rebellion; and they that so offend, suffer not as subjects, but as enemies. For rebellion, is but war renewed.
Reward is either salary or grace.
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 sovereign of a commonwealth appointeth a salary to any public office, he that receiveth it, is bound in justice to perform his office; otherwise, he is bound only in honour, to acknowledgment, and an endeavour of requital. For though men have no lawful remedy, when they be commanded to quit their private business, to serve the public, without reward or salary; yet they are not bound thereto, by the law of nature, nor by the institution of the commonwealth, unless the service cannot otherwise be done; because it is supposed the sovereign may make use of all their means, insomuch as the most common soldier, may demand the wages of his warfare, as a debt.
Benefits bestowed for fear are not rewards.
The benefit which a sovereign bestoweth on a subject, for fear of some power and ability he hath to do hurt to the commonwealth, are not properly rewards; for they are not salaries; because there is in this case no contract supposed, every man being obliged already not to do the commonwealth disservice: nor are they graces; because they be extorted by fear, which ought not to be incident to the sovereign power: but are rather sacrifices, which the sovereign, considered in his natural person, and not in the person of the commonwealth, makes, for the appeasing the discontent of him he thinks more potent than himself; and encourage not to obedience, but on the contrary, to the continuance, and increasing of further extortion.
Salaries certain and casual.
And whereas some salaries are certain, and proceed from the public treasure; and others uncertain, and casual, proceeding from the execution of the office for which the salary is ordained; the latter is in some cases hurtful to the commonwealth; as in the case of judicature. For where the benefit of the judges, and ministers of a court of justice ariseth from the multitude of causes that are brought to their cognizance, there must needs follow two inconveniences: one, is the nourishing of suits; for the more suits, the greater benefit: and another that depends on that, which is contention about jurisdiction; each court drawing to itself, as many causes as it can. But in offices of execution there are not those inconveniences; because their employment cannot be increased 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 limbs and joints of a commonwealth.
Hitherto I have set forth the nature of man, whose pride and other passions have compelled him to submit himself to government: together with the great power of his governor, 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, calleth him king of the proud. There is nothing, saith he, on earth, to be compared with him. He is made so as not to be afraid. He seeth every high thing below him; and is king of all the children of pride. But because he is mortal, 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 laws he ought to obey; I shall in the next following chapters speak of his diseases, and the causes of his mortality; and of what laws of nature he is bound to obey.