The first, and most generall distribution of Punishments, is into Divine, and Humane. Of the former I shall have occasion, to speak, in a more convenient place hereafter.
Humane, are those Punishments that be inflicted by the Commandement of Man; and are either Corporall, or Pecuniary, or Ignominy, or Imprisonment, or Exile, or mixt of these.
Punishments Corporall
Corporall Punishment is that, which is inflicted on the body directly, and according to the intention of him that inflicteth it: such as are stripes, or wounds, or deprivation of such pleasures of the body, as were before lawfully enjoyed.
Capitall
And of these, some be Capitall, some Lesse than Capitall. Capitall, is the Infliction of Death; and that either simply, or with torment. Lesse than Capitall, are Stripes, Wounds, Chains, and any other corporall Paine, not in its own nature mortall. For if upon the Infliction of a Punishment death follow not in the Intention of the Inflicter, the Punishment is not be bee esteemed Capitall, though the harme prove mortall by an accident not to be foreseen; in which case death is not inflicted, but hastened.
Pecuniary Punishment, is that which consisteth not only in the deprivation of a Summe of Mony, but also of Lands, or any other goods which are usually bought and sold for mony. And in case the Law, that ordaineth such a punishment, be made with design to gather mony, from such as shall transgresse the same, it is not properly a Punishment, but the Price of priviledge, and exemption from the Law, which doth not absolutely forbid the fact, but only to those that are not able to pay the mony: except where the Law is Naturall, or part of Religion; for in that case it is not an exemption from the Law, but a transgression of it. As where a Law exacteth a Pecuniary mulct, of them that take the name of God in vaine, the payment of the mulct, is not the price of a dispensation to sweare, but the Punishment of the transgression of a Law undispensable. In like manner if the Law impose a Summe of Mony to be payd, to him that has been Injured; this is but a satisfaction for the hurt done him; and extinguisheth the accusation of the party injured, not the crime of the offender.
Ignominy
Ignominy, is the infliction of such Evill, as is made Dishonorable; or the deprivation of such Good, as is made Honourable by the Common-wealth. For there be some things Honorable by Nature; as the effects of Courage, Magnanimity, Strength, Wisdome, and other abilities of body and mind: Others made Honorable by the Common-wealth; as Badges, Titles, Offices, or any other singular marke of the Soveraigns favour. The former, (though they may faile by nature, or accident,) cannot be taken away by a Law; and therefore the losse of them is not Punishment. But the later, may be taken away by the publique authority that made them Honorable, and are properly Punishments: Such are degrading men condemned, of their Badges, Titles, and Offices; or declaring them uncapable of the like in time to come.
Imprisonment
Imprisonment, is when a man is by publique Authority deprived of liberty; and may happen from two divers ends; whereof one is the safe custody of a man accused; the other is the inflicting of paine on a man condemned. The former is not Punishment; because no man is supposed to be Punisht, before he be Judicially heard, and declared guilty. And therefore whatsoever hurt a man is made to suffer by bonds, or restraint, before his cause be heard, over and above that which is necessary to assure his custody, is against the Law of Nature. But the Later is Punishment, because Evill, and inflicted by publique Authority, for somewhat that has by the same Authority been Judged a Transgression of the Law. Under this word Imprisonment, I comprehend all restraint of motion, caused by an externall obstacle, be it a House, which is called by the generall name of a Prison; or an Iland, as when men are said to be confined to it; or a place where men are set to worke, as in old time men have been condemned to Quarries, and in these times to Gallies; or be it a Chaine, or any other such impediment.
Exile
Exile, (Banishment) is when a man is for a crime, condemned to depart out of the dominion of the Common-wealth, or out of a certaine part thereof; and during a prefixed time, or for ever, not to return into it: and seemeth not in its own nature, without other circumstances, to be a Punishment; but rather an escape, or a publique commandement to avoid Punishment by flight. And Cicero sayes, there was never any such Punishment ordained in the City of Rome; but cals it a refuge of men in danger. For if a man banished, be neverthelesse permitted to enjoy his Goods, and the Revenue of his Lands, the meer change of ayr is no punishment; nor does it tend to that benefit of the Common-wealth, for which all Punishments are ordained, (that is to say, to the forming of mens wils to the observation of the Law;) but many times to the dammage of the Common-wealth. For a Banished man, is a lawfull enemy of the Common-wealth that banished him; as being no more a Member of the same. But if he be withall deprived of his Lands, or Goods, then the Punishment lyeth not in the Exile, but is to be reckoned amongst Punishments Pecuniary.
The Punishment Of Innocent Subjects Is Contrary To The Law Of Nature
All Punishments of Innocent subjects, be they great or little, are against the Law of Nature; For Punishment is only of Transgression of the Law, and therefore there can be no Punishment of the Innocent. It is therefore a violation, First, of that Law of Nature, which forbiddeth all men, in their Revenges, to look at any thing but some future good: For there can arrive no good to the Common-wealth, by Punishing the Innocent. Secondly, of that, which forbiddeth Ingratitude: For seeing all Soveraign Power, is originally given by the consent of every one of the Subjects, to the end they should as long as they are obedient, be protected thereby; the Punishment of the Innocent, is a rendring of Evill for Good. And thirdly, of the Law that commandeth Equity; that is to say, an equall distribution of Justice; which in Punishing the Innocent is not observed.
But The Harme Done To Innocents In War, Not So
But the Infliction of what evill soever, on an Innocent man, that is not a Subject, if it be for the benefit of the Common-wealth, and without violation of any former Covenant, is no breach of the Law of Nature. For all men that are not Subjects, are either Enemies, or else they have ceased from being so, by some precedent covenants. But against Enemies, whom the Common-wealth judgeth capable to do them hurt, it is lawfull by the originall Right of Nature to make warre; wherein the Sword Judgeth not, nor doth the Victor make distinction of Nocent and Innocent, as to the time past; nor has other respect of mercy, than as it conduceth to the good of his own People. And upon this ground it is, that also in Subjects, who deliberatly deny the Authority of the Common-wealth established, the vengeance is lawfully extended, not onely to the Fathers, but also to the third and fourth generation not yet in being, and consequently innocent of the fact, for which they are afflicted: because the nature of this offence, consisteth in the renouncing of subjection; which is a relapse into the condition of warre, commonly called Rebellion; and they that so offend, suffer not as Subjects, but as Enemies. For Rebellion, is but warre renewed.
Reward, Is Either Salary, Or Grace
REWARD, is either of Gift, or by Contract. When by Contract, it is called Salary, and Wages; which is benefit due for service performed, or promised. When of Gift, it is benefit proceeding from the Grace of them that bestow it, to encourage, or enable men to do them service. And therefore when the Soveraign of a Common-wealth appointeth a Salary to any publique Office, he that receiveth it, is bound in Justice to performe his office; otherwise, he is bound onely in honour, to acknowledgement, and an endeavour of requitall. For though men have no lawfull remedy, when they
