The English works of Thomas Hobbes of Malmesbury, Volume 03 (of 11)
Thomas Hobbes · en
Those facts which the law expressly condemneth, but the law-maker by
other manifest signs of his will tacitly approveth, are less crimes,
than the same facts, condemned both by the law and law-maker. For seeing
the will of the law-maker is a law, there appear in this case two
contradictory laws; which would totally excuse, if men were bound to
take notice of the sovereign’s approbation, by other arguments than are
expressed by his command. But because there are punishments consequent,
not only 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 duels; the punishment is made capital: on the contrary
part, he that refuseth duel, is subject to contempt and scorn, without
remedy; and sometimes by the sovereign himself thought unworthy to have
any charge, or preferment in war. If thereupon he accept duel,
considering all men lawfully endeavour to obtain the good opinion of
them that have the sovereign 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 governors, not to
countenance anything 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 laws 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
supernatural grace to follow that precept.
[Sidenote: Comparison of crimes from their effects.]