If a man by the terror of present death be compelled to do 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 do it not,I die presently;if I do it,I die afterwards;therefore by doing it,there is time of life gained."Nature therefore compels him to the fact.
When a man is destitute of food or other thing necessary for his life,and cannot preserve himself 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 obtain for money,nor charity;or in defence of his life,snatch away another man's sword;he is totally excused for the reason next before alleged.
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 both the author and actor are criminals.From hence it followeth that when that man or assembly that hath the sovereign 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 himself,because he is the author;and what cannot justly be condemned by the sovereign cannot justly be punished by any other.Besides,when the sovereign commandeth anything to be done against his own former law,the command,as to that particular fact,is an abrogation of the law.
If that man or assembly that hath the sovereign power disclaim any right essential to the sovereignty,whereby there accrueth to the subject any liberty inconsistent with the sovereign power;that is to say,with the very being of a Commonwealth;if the subject shall refuse to obey the command in anything,contrary to the liberty granted,this is nevertheless a sin,and contrary to the duty of the subject:for he to take notice of what is inconsistent with the sovereignty,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 evil consequence thereof.But if he not only disobey,but also resist a public 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.
The degrees of crime are taken on diverse scales,and measured,first,by the malignity of the source,or cause:secondly,by the contagion of the example:thirdly,by the mischief of the effect:
and fourthly,by the concurrence of times,places,and persons.
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 laws;whereas in the latter case the apprehension of danger that makes a man fly renders him more obedient for the future.A crime which know to be so is greater than the same crime proceeding from a false persuasion that it is lawful: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 error,after the error shown him,is conformable to the law.
He whose error proceeds from the authority of a teacher,or an interpreter of the law publicly authorised,is not so faulty as he whose error proceedeth from a peremptory pursuit of his own principles and reasoning:for what is taught by one that teacheth by public authority,the Commonwealth teacheth,and hath a resemblance of law,till the same authority controlleth it;and in all crimes that contain not in them a denial of the sovereign 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 error thereof,to stand or fall.
The same fact,if it have been constantly punished in other men,is a greater crime than if there have been many precedent examples of impunity.For those examples are so many hopes of impunity,given by the sovereign himself: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.
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 human nature;but he that doth it with premeditation has used circumspection,and cast his eye on the law,on the punishment,and on the consequence thereof to human society;all which in committing the crime he hath contemned and postponed to his own appetite.But there is no suddenness of passion sufficient for a total 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 rectify the irregularity of his passions.
Where the law is publicly,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 sovereign power.
