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.
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.
Public crimes what.
Lastly, because in almost all crimes there is an injury done, not only to some private men, but also to the commonwealth; the same crime, when the accusation is in the name of the commonwealth, is called public crime: and when in the name of a private man, a private crime; and the pleas according thereunto called public, 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 sovereign, the plea is a Public Plea.
CHAPTER XXVIII.
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.