_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.