Lastly,harm inflicted upon one that is a declared enemy falls not under the name of punishment:because seeing they were either never subject to the law,and therefore cannot transgress it;or having been subject to it,and professing to be no longer so,by consequence deny they can transgress it,all the harms that can be done them must be taken as acts of hostility.But in declared hostility all infliction of evil is lawful.From whence it followeth that if a subject shall by fact or word wittingly and deliberately deny the authority of the representative of the Commonwealth (whatsoever penalty hath been formerly ordained for treason),he may lawfully be made to suffer whatsoever the representative will:for in denying subjection,he denies such punishment as by the law hath been ordained,and therefore suffers as an enemy of the Commonwealth;that is,according to the will of the representative.For the punishments set down in the law are to subjects,not to enemies;such as are they that,having been by their own act subjects,deliberately revolting,deny the sovereign power.
The first and most general distribution of punishments is into divine and human.Of the former I shall have occasion to speak in a more convenient place hereafter.
Human are those punishments that be inflicted by the commandment of man;and are either corporal,or pecuniary,or ignominy,or imprisonment,or exile,or mixed of these.
Corporal 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.
And of these,some be capital,some less than capital.Capital is the infliction of death;and that either simply or with torment.
Less than capital are stripes,wounds,chains,and any other corporal pain not in its own nature mortal.For if upon the infliction of a punishment death follow,not in the intention of the inflicter,the punishment is not to be esteemed capital,though the harm prove mortal 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 sum of money,but also of lands,or any other goods which are usually bought and sold for money.And in case the law that ordaineth such a punishment be made with design to gather money from such as shall transgress the same,it is not properly a punishment,but the price of privilege and exemption from the law,which doth not absolutely forbid the fact but only to those that are not able to pay the money:except where the law is natural,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 vain,the payment of the mulct is not the price of a dispensation to swear,but the punishment of the transgression of a law indispensable.In like manner if the law impose a sum of money to be paid 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 is the infliction of such evil as is made dishonourable;or the deprivation of such good as is made honourable by the Commonwealth.For there be some things honourable by nature;as the effects of courage,magnanimity,strength,wisdom,and other abilities of body and mind:others made honourable by the Commonwealth;as badges,titles,offices,or any other singular mark of the sovereigns favour.The former,though they may fail by nature or accident,cannot be taken away by a law;and therefore the loss of them is not punishment.But the latter may be taken away by the public authority that made them honourable,and are properly punishments:
such are,degrading men condemned,of their badges,titles,and offices;or declaring them incapable of the like in time to come.
Imprisonment is when a man is by public authority deprived of liberty,and may happen from two diverse ends;whereof one is the safe custody of a man accused;the other is the inflicting of pain on a man condemned.The former is not punishment,because no man is supposed to be punished 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 latter is punishment because evil,and inflicted by public 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 external obstacle,be it a house,which is called by the general name of a prison;or an island,as when men are said to be confined to it;or a place where men are set to work,as in old time men have been condemned to quarries,and in these times to galleys;or be it a chain or any other such impediment.
