CHAP. X.

_Of Penalties._

The usual Penalties are Death, Mutilations, Imprisonment, Publick

disgrace, Corporal transient pains, and great Tortures, besides

Pecuniary Mulcts. On which last we shall most insist, speaking of

the others but in order to examine whether they may not be commuted

for these.

2. There be some certain Crimes, for which the Law of God appoints

death; and these must be punished with it, unless we say that those

were but the Civil Laws of the Jewish Commonwealth, although given

by God himself; of which opinion certainly most modern States

are, in as much as they punish not Adulteries, &c. with death, as

among the Jewes, and yet punish small Thefts with Death instead of

multiple reparation.

3. Upon this supposition we shall venture to offer; whether the

reason of simple Death be not to punish incorrigible Committers of

great faults?

4. Of publick Death with Torments, to affright men from Treasons,

which cause the deaths and miseries of many thousand innocent and

useful people?

5. Of Death secretly executed, to punish secret and unknown Crimes,

such as Publick Executions would teach to the World? Or else to

suffocate betimes some dangerous Novelties in Religion, which the

patient suffering of the worst man would much spread and encourage.

6. Mutilations suppose of Ears, Nose, &c. are used for perpetual

disgrace, as standing in the Pillory is for temporary and

transient; which and such other punishments have (by the way) made

some corrigible offenders, to become desperate and incurable.

7. Mutilations of parts as of Fingers, are proper to disable such

as have abused their dextrous use of them, by Pocket-picking,

Counterfeiting of Seals and Writings, &c. Mutilations of other

parts, may serve to punish and prevent Adulteries, Rapes, Incests,

&c. And the smaller Corporal pains, serve to punish those, who can

pay no pecuniary mulcts.

8. Imprisonment seems rather to be the punishments of suspected

then guilty persons, and such as by their carriage give the

Magistrate occasion to think, either they have done some smaller

particular Crime, as Thefts, &c. or that they would commit greater,

as Treasons and Seditions. But where Imprisonment is not a securing

men untill their Trialls, but a sentence after Triall, it seems

to me proper onely to seclude such men from conversation, whose

Discourses are bewitching, and Practices infectious, and in whom

neverthelesse remains some hopes of their future Amendments, or

usefulnesse for some service not yet appearing.

9. As for perpetual Imprisonment by sentence, it seems but the same

with death it self, to be executed by nature it self, quickened

with such Diseases, as close living, sadness, solitude, and

reflections upon a past and better condition, doth commonly beget:

Nor do men sentenced hereunto live longer, though they be longer in

dying.

10. Here we are to remember in consequence of our opinion, [That

Labour is the Father and active principle of Wealth, as Lands are

the Mother] that the State by killing, mutilating, or imprisoning

their members, do withall punish themselves; wherefore such

punishments ought (as much as possible) to be avoided and commuted

for pecuniary mulcts, which will encrease labour and publick wealth.

11. Upon which account, why should not a man of Estate, found

guilty of man-slaughter, rather pay a certain proportion of his

whole Estate, then be burnt in the hand?

12. Why should not insolvent Thieves be rather punished with

slavery then death? so as being slaves they may be forced to as

much labour, and as cheap fare, as nature will endure, and thereby

become as two men added to the Commonwealth, and not as one taken

away from it; for if _England_ be under-peopled, (suppose by half)

I say that next to the bringing in of as many more as now are, is

the making these that are, to do double the work which now they do;

that is, to make some slaves; but of this elsewhere.

13. And why should not the solvent Thieves and Cheats be rather

punished with multiple Restitutions then Death, Pillory, Whipping?

&c. But it will be asked, with how manifold Restitutions should

picking a pocket (for example) be punished? I say, ’twere good in

order to the solution hereof, to enquire of some candid Artists

in that Trade, how often they are taken one time with another

practising in this work? If but once in ten times, then to restore

even but seven-fold, would be a fair profit; and to restore but

ten-fold, were but an even lay; wherefore to restore twenty-fold,

that is, double to the hazard, is rather the true _ratio_ and

measure of punishment by double reparation.

14. And surely the restoring two, three, four, and seven-fold

mentioned in _Moses_ Law must be thus understood, or else a man

might make thieving a very fair and lawful profession.

15. The next question is, in such multiple Restitutions how many

parts should be given to the sufferer. To which I answer, never

above one, and scarce that, to oblige him to more care, and

self-preservation, with three parts to discoverers, and the rest to

publick uses.

16. Thirdly, In the case of Fornications, most of the punishments

not made by pecuniary mulcts and commuted, are but shame, and

that too but towards some few persons, which shame for ever after

obdurates the Offender, what ever it work upon such whose fames

are yet intire: Of all which men take little consideration,

standing upon the brink of such precipices as makes them giddy; and

when they are in danger of such faults as are rather madnesses,

distempers, and alienations of the minde and reason, as also

insurrections of the passions, then deliberate acts of the

understanding.

17. Moreover, according to that Axiom of _In quo quis peccat, in

eodem puniatur_; if the _Ratio formalis_ of the sin of _Concubitus

Vagi_, be the hindering of procreation, let those who by their

miscarriages of this kinde are guilty thereof, repair unto the

State the misse of another pair of hands with the double labour of

their own, or which is all one, by a pecuniary mulct; and this is

the practice of some wise States in punishing what they will never

be able to prevent: Nor doth the Gospel specifie any punishment in

this world, onely declaring they shall not be received into the

joyes of the next.

18. I could instance in more particulars, but if what I have

already said be reasonable, this little is enough; if not, then all

the rest would be too little also: wherefore I shall adde but one

instance more, as most suitable to our present times and occasions,

which is the way of punishing Heterodox Professors of Religion.

19. That the Magistrate may punish false Believers, if he believe

he shall offend God in forbearing it, is true; for the same

reasons that men give for Liberty of Conscience, and universal

tolleration; and on the other side, that he may permit false

Worships, seems clearly at least by the practice of all States,

who allow Ambassadours their freedom (be their Worship never so

abominable) even when they come to negociate but upon temporal and

small matters.

20. Wherefore, since the Magistrate may allow or connive at such

Worships as himself thinks fit, and yet may also punish; and since

by Death, Mutilations, and imprisonments of the Subjects, the

State not onely punisheth it self, but spreadeth the Pseudodoxies;

it follows, that pecuniary Mulcts are the fittest wayes of

checking the wantonness of men in this particular: forasmuch as

that course favours of no bitterness at all, but rather argues a

desire to indulge, provided such indulgence may consist with the

indempnity of the State; for no Heterodox believer will desire to

be tollerated longer then he keeps the Publick Peace; the which if

he means to do, he cannot take it ill of the Magistrate, to keep

him steddy unto that his duty, nor grudge to contribute towards so

much charge for that purpose as himself occasions.

21. Moreover, as there seems a reason for indulging some

conscientious misbelievers, so there is as much for being severe

towards Hypocrites, especially such as abuse holy Religion to cloak

and vizzard worldly ends: Now what more easie and yet effectual

way is there to discern between these two, then well proportioned

pecuniary mulcts? for who desiring to serve God without fear, and

labouring ten hours _per diem_ at his Calling, would not labour one

hour more for such a freedom? even as religious men spend an hour

_per diem_ more then the looser sort do at their Devotions; or who

wearing Cloth of one and twenty shillings the yard, would not be

contented with that of twenty shillings, for the same advantage of

his liberty in Worship? Those that kick at this, being unwilling

either to do or suffer for God, for whose sake they pretend so much.

22. It may be here objected, that although some bad Religions might

be tollerated, yet that all may not, _viz._ such as consist not

with the Civil Peace. To which I answer,

First; that there is no Schisme or Separation be it never so small,

consistent with that unity and peace as could be wisht; nor none so

perfectly conscientious, but may also be civilly most pernicious:

For that _Venner_ and his Complices acted upon internal motives,

the most free exposing of themselves to death may evince; and yet

their holding the King to be an Usurper upon the Throne and Right

of Jesus Christ was a Civil mischief neither to be pardoned or

parallel’d.

23. And yet on the other hand there is no Pseudodoxy so great, but

may be muzzled from doing much harm in the State, without either

Death, Imprisonment, or Mutilation: To make short, no opinion

can be more dangerous, then to disbelieve the immortality of the

Soul, as rendring man a beast, and without conscience, or fear of

committing any evil, if he can but elude the penalties of humane

Laws made against it, and letting men loose to all evil thoughts

and designs whereof man can take no notice: Now I say, that even

this Misbeliever may be adæquately punished if he be kept as a

beast, be proprietor of nothing, as making no conscience how he

gets; be never admitted in Evidence or Testimony, as under no

Obligation to speak truth; be excluded all Honours and Offices,

as caring onely for himself, not the protecting of others; and be

withall kept to extream bodily labour, the profit whereof to the

State is the pecuniary Mulct we speak of, though the greatest.

24. As for opinions less horrible then this, the Mulct may be

fitted to each of them respectively, according to the measure of

danger which the Magistrate apprehends from their allowance, and

the charge necessary to prevent it.

25. And now we are speaking of the wayes how to prevent and

correct Heterodoxies in Religion, which we have hitherto done

by designing punishments for the erring sheep, I think it not

amiss to adde, That in all these cases the Shepherds themselves

should not wholly scape free: For if in this Nation there be such

abundance of Free-Schools, and of liberall Maintenance provided in

our Universities and elsewhere for instructing more then enough in

all such learning as is fit to defend the established Religion,

together with superabundant Libraries for that purpose. Moreover,

if the Church-preferments be so numerous and ample both for Wealth,

Honour, and Power, as scarce any where more; it seems strange that

when by the laziness, formality, ignorance, and loose lives of our

Pastours, the sheep have gone astray, grown scabbed, or have been

devoured by Wolves and Foxes, that the Remedy of all this should

be onely sought by frighting those that have strayed from ever

returning again, and by tearing off as well the skins as the wool

of those that are scabbed; whereas Almighty God will rather require

the blood even of them that have been devoured, from the shepheards

themselves.

26. Wherefore if the Minister should lose part of the Tythes of

those whom he suffers to defect from the Church, (the defector not

saving, but the State wholly gaining them) and the defector paying

some pecuniary Mulct for his Schisme, and withall himself defraying

the charge of his new particular Church and Pastorage, me thinks

the burthen would be thus more equally born.

27. Besides, the judicious world do not believe our Clergy can

deserve the vaste preferments they have, onely because they preach,

give a better accompt of Opinions concerning Religion then others,

or can express their conceptions in the words of the Fathers, or

the Scriptures, &c. Whereas certainly the great honour we give

them, is for being patterns of holiness, for shewing by their own

self-denials, mortifications, and austerities, that ’tis possible

for us to imitate them in the precepts of God; for if it were but

for their bare Pulpit-discourses, some men might think there is

ten thousand times as much already printed as can be necessary,

and as good as any that ever hereafter may be expected. And it is

much suspected, that the Discipline of the Cloisters hath kept up

the Roman Religion, which the Luxury of the Cardinals and Prelates

might have destroyed.

28. The substance therefore of all we have said in this discourse

concerning the Church is, that it would make much for its peace,

if the Nursery of Ministers be not too big, that Austerities in

the Priests lives would reconcile them to the people; and that it

is not unreasonable, that when the whole Church suffers by the

defection of her Members, that the Pastours of it by bearing a

small part should be made sensible of the loss; the manner and

measures of all which I leave unto those unto whom it belongs.

29. Concerning Penalties and Penal Laws I shall adde but this, that

the abuse of them is, when they are made not to keep men from sin,

but to draw them into punishment; and when the Executers of them

keep them hid until a fault be done, and then shew them terrible to

the poor immalicious offender: Just like Centinels, who never shew

men the advertisements against pissing near their Guards, till they

have catcht them by the coats for the forfeiture they claim.

A Treatise of Taxes and Contributions Shewing the nature and measures of crown-lands, assessements, customs, poll-moneys, lotteries, benevolence, penalties, monopolies, offices, tythes, raising of coins, harth-money, excize, &c.; with several intersperst discourses and digressions concerning warres, the church, universities, rents & purchases, usury & exchange, banks & lombards, registries for conveyances, beggars, ensurance, exportation of money [&] wool, free-ports, coins, housing, liberty of conscience, &c.; the same being frequently applied to the present state and affairs of Ireland. · 第 16 / 24 题