The usual Penalties are Death, Mutilations, Imprisonment, Publick disgrace, Corporal transient pains, and great Tortures, besides the Pecuniary Mulcts. Of which last we shall most insist, speaking of the others but in order to examine whether they may not be comuted 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, etc. 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 incorrigle 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, etc. are used for perpetual disgrace, as standing in the Pillory is for temporary and tansient; whichand such other punishments have (by the way) made some corrigible offenders, to become desperate and incurable.
7. Mutilations of parts of Fingers, are proper to disable such as have abused their dextrous use of them, by Pocket-picking, Counterfeiting of Seals and Writings, etc.
Mutilations of other parts, may serve to punish and prevent Adulteries, Rapes, Incests, etc. And the smaller Corporal pains, serve to punish those, who can pay no pecuinary 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, etc. 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 Theives and Cheats be rather punished with multiple Resitutions then Death, Pillory, Whipping? etc. 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 the work? If but once in ten times, then to restore but ten-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 sevenfold 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 ae 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.
