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bat, like the misers before spoken of, they are indeed beyond them, for that excise toucheth not them. They neither eat nor drink with christians; a few eggs or herbs are most of their food; live sordidly, and spend little: Have no lands or rents to be reached by any tax; nor is their trade profitable to a kingdom, or advantageous to the revenue, dealing most in bills of exchange, jewels, and concealable commodities, that pay no duty.
These men should be reached by a particular tax, and so made profitable to a kingdom.
Thirdly, In some places, the government maintains play-houses and matters of sport and recreation, paying the actors salaries, and taking the profit into their own treasures. And in other parts, as in Holland, the publick have one that takes part of what is given by spectators; so that they make again out of that waste money, for no better can I term it. If a calculation was made of all the money spent in England, by such diversions, it might be thought, a round sum might be raised to the king. Does it not seem an omission, that a play-house, which receives twenty-thousand pounds a year, should pay nothing to the publick; when a coffee-house, that receives not one-thousand per annum, pays twenty pounds! And so it is in musick-houses, bear-gardens, and plays in fairs, &c. Fourthly, In some parts of the world, as Italy, France, and Spain, a tax of labour upon malefactors condemns such, as we here punish with death, to the gallies and mines, which is a punishment of greater terror and longer example than death, and, at the same time, of profit to the kingdom, 1 have often thought upon this particular, and spent hours in debate with myself, and therefore shall beg your patience, if I trouble you with a tedious harangue of but part of my conceptions.
I have enquired first into the law of God, then into that of other kingdoms, and find that we differ from both in our punishment for felonies. The law of Moses, which is more severe than ours in many things (as that of adultery, and disobedience to parents, the latter of which is by our law not so penal as a broken head) yet, in felonies, not so extreme as we are; so far from making it death, as not to inflict a corporal punishment. The restoring of four-fold was directed by the great judge of heaven and earth; and, if the thief had nothing to make satisfaction with, he was to be sold. But our laws and customs differ much, when we punish the kingdom for the fault of an evil member. It will not be denied, but that the treasure of men is of more value than that of money,
Now, to take away the life of a man'is, in its proportion, equal to a man's cutting off a limb, because it is sore. A thief is a diseased member, better to be cured, than destroyed. It will be thought an extravagant fancy, yet to me it seems a real truth, that a thief is less mischievous to a body politick, than a miser; for he only makes ft "wron;r transferring of riches; the other, I mean the miser, keeps all buried, so that the community is wronged by him, and only particular persons by the other; and, as the taking away the life of a man
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weakens the kingdom, so does it injure the person robbed; for that, if the thief were not able to pay, then might he be sold, and kept at work in mines, or other penal labour, both for satisfaction to the person injured, and corporal punishment to the offender. And it may be thought to be of more terror, to have a spectacle for many years labouring with a shaved head in chains, than an execution of half an hour, that is oftentimes soon forgotten.
I have named but these four heads, for all the foreign use in taxes, because I do not remember, amongst the numerous ways they have, any other practicable and profitable in these kingdoms. The two latter of these we do not use; but I presume, if they were taken into the consideration of better heads than mine, they might find a way to make something out of them; forasmuch as I am able to judge, a great revenue might be made to accrue to the kingdom, out of the vermin of the nation, leud persons of both sexes, which now pass as if tolerated in their enormities; and only one sett of them, that the law seems severe against, punishing them with death; which by so much appears to be the worse, by how much we suppose nothing too rigorous for offences against ourselves, and nothing too little or indulgent for crimes committed against God. I am,
CASE OF CLANDESTINE MARRIAGES STATED,
WHEREIN ARE SHEWN
THE CAUSES FROM WHENCE THIS CORRUPTION ARISETH, And the true Methods, whereby it may be remedied.
IN A LETTER TO A PERSON OF HONOUR.
[From a quarto edition, printed at London, in the year 1691."]
JLjY the sixty-second canon of King James the First, as well as by the constitutions of John Stratford, Archbishop of Canterbury, in the reign of King Edward the Third, it is ordained, 'That, no persons shall be married, but in the parishes where one of the parties dwells.' And in the hundred and second canon, it is further provided, That * when a license is granted, the person, that grants it, shall take good caution and security:' As for other things in the canon mentioned, so lastly for this, That' they shall celebrate the marriage publickly, in the parish church, or chapel, where one of them dwelleth, and in no other place; and that between the hours of eight and twelve in the morning.'
Most clandestine marriages that have happened, have proceeded from the breach of these canons: For, were they punctually observed, and all marriages solemnised only in the parish church, or chapel,' where one of the parties dwells,' and no where else, no clandestine design, this way, could be carried so closely, but that the friends must know of it: At least, a stop must be put thereto, when it comes to the minister. For, when a minister celebrates a marriage that is clandestine, he doth it either out of ignorance, or ill design. As to the ignorance of the minister, in this particular (and many clandestine marriages proceed only from their being imposed on this way) the method, prescribed by the canon, must be a very effectual way; because, when all are married in their own parishes, the ministers cannot be supposed to be ignorant, whether they have consent of friends, or no, (unless, perchance, in some of the larger parishes in London, where other care may be taken, by requiring the friends of both parties to be actually present) and, therefore, though a license should be fraudulently obtained, yet, if directed to him, it can be of no effect; because all licenses go with a proviso of nullity, in case of fraud; and, therefore, to him that knows the fraud (as it is scarce possible but every minister must in his own parish) it can be no license at all, but he will be as much liable to the penalty of the law, if he marries with a license in this case, as if he had no license at all. And as to a minister's being party to the ill design of a clandestine marriage, you shall scarce ever find this to happen, when people are married by their own minister. For, the penalty being suspension per triennium, none that have benefices which are worth any thing, and are sensible of the fraud (as all ministers must be in the parishes where they live) will expose themselves to be deprived of them so long, for the sake of a marriage fee. But, most an end, they are not ministers of parishes, but indigent curates, or unpreferred chaplains, that wilfully engage themselves in this matter; who, having nothing to lose, on this account, are out of the reach of the penalty; and, therefore, if there are but one or two such in a county, usually the whole trade of clandestine marriages goes to them; and, therefore, the best way to prevent such marriages, will be, to confine all, according to the canon, to be married at home in their own parishes, by the minister of the place that hath an in. terest there, wherein to suffer, if he doth amiss. Because, if this be done, the minister can neither be imposed on by a fraudulent license, where the persons are so well known unto him (as those of his own parish must be), nor will he dare to marry without one. It may, I confess, be possible, that a minister, to gratify some gentleman of his parish, who, he thinks, is able to protect him from tbe penalty, or else make him amends for what he suffers by it, may be prevailed with to celebrate a clandestine marriage for his sake, and thereby put an obligation upon him, and all his family and friends, on account of the advantage usually gotten to the man by such stolen matches. But, in the parish where the woman lives, it will be quite otherwise. For, it being, for the most part, the man that steals the woman, and not the woman the man, there, instead of obliging, he will injure, and that in so high a degree, that the family which suffers, with all their friends and relations (who, perchance, may make the major part of the parish) will be sure to fall upon him with their utmost resentments; and, in this case, a minister will have but little comfort of his life among them afterwards, though he should escape the penalty of the law; and scarce any being so weak as not to foresee it must be so, where so just a provocation is given. This alone will be a sufficient tie, were there no other, to keep any minister from betraying any of his own parish. And, therefore, were one small alteration made in the canon, and instead of the parish church or chapel where one of the parties dwells, it were ordered, that all marriages should be celebrated in the parish church or chapel only where the woman dwells (as, indeed, common custom hath already ordered it, in most marriages that are not clandestine) I apprehend it would be a thorough remedy to the whole abuse. However, were the canons, as they now stand, punctually observed, this alone would go so far towards it, that there would not be so frequent instances of this injurious practice, as to alarm the nation against us, as now we find they do, and provoke them to bring san. guinary laws upon us to prevent it.
But the mischief is, that, when the church makes good laws, our courts, when they find them against their interest, will not put them in execution. For, were all obliged to be married in their own parishes, it would cut off above half the trade of granting licenses, which would very considerably diminish from the profit which chancellors, commissaries, and registers make of their places. And, therefore, instead of executing the canons above-mentioned (as is their duty) they make it their whole endeavour to baffle them, and make them of no effect, by all the tricks they are able. For,
1. They never take any such caution or security, as the hundred and second canon enjoins in their licenses; but, on the contrary, scarce ever direct any that they grant to the parishes where the par. ties dwell, but put in any other parishes which the parties to be married shall desire, at what distance soever they may be from the places of their usual habitation, without any regard at all had to the canon which enjoins the contrary. Whereby occasion is given to abundance of frauds in this particular, which otherwise might be prevented.
2. Whereas the hundred and first canon enjoins, that none shall grant any licenses, but such as have episcopal authority, or the commissary of the faculties, vicars-general of the archbishops, and bishops, $ede plena, or the guardian of the spiritualities, sede vacante, or ordinaries exercising right of episcopal jurisdiction in their several jurisdictions. And whereas the law is, that those grants are only to be made before themselves, and not before any substitute whom they shall appoint, that all the matters, requisite to the granting of a li. cense, may be first well enquired into, as whether there be any precontract; whether there be consent of friends; whether the parties to be married are within the prohibited degrees of relation, or uo, &c. which often require the skill of the judge himself to deter
mine in them. The good orders of the church have been so far neg. lected in all these particulars, and the corruption of officers in our ecclesiastical courts, for the sake of gain, hath run so high, that everything is done contrary to them in this matter. For instead of chan. eel lors and commissaries taking any pains in the particulars above. mentioned, or making any previous examinations requisite to pre. vent either fraud, or illegal copulations, they leave the whole matter to their registers, who, regarding nothing else, but to make the most of this trade, by dispersing and vending as many of those licenses as they can, as often as they have occasion for them, seal them by heaps, with blanks reserved to insert the names of any such as shall afterwards come for them; and, as customers come in, fill them up, without any other enquiry of the persons concerned, than for their money to pay for them. And when this stock is spent, then they go to sealing again; and, for the better advancing of this unlawful gain, they are not content to break all the good orders of the church concerning this matter, themselves, but also involve a great many of the clergy, with them, in the guilt and scandal of this corruption, by making some of them their factors in every deanry, for the dispersing of those licenses; who, under the name of surrogates, are drawn in to be their under-agents in so scandalous a work, which is to the great damage of the church, as well as against all right and law. For,
1. No chancellor or commissary hath power to make any such surrogates to act out of their respective courts. For, although they now take upon them thus to do, it is only founded on a clause in their patents, which give them the office to be executed, aut per sef nut per sufficientes deputatos. The meaning of which only is, that, in case of sickness, absence on just occasions, or any other lawful impediment, they may appoint others to hold their courts for them, and expedite all other acts usually done out of court; but not that they should erect inferior courts under them, as they do now by their surrogates in every deanry, to draw the more grist to their mills; which is directly contrary to law, and of infinite prejudice to the church, in corrupting and depraving all the good orders and disci. pline of it, and drawing thereby the odium of the people upon the governors thereof, by the frequent acts of injustice, which, by clan. destine marriages, are done unto them.
2. It is a very great snare to clergymen, in being thus made the tools of those men's knaveries, and may expose them to one of the most disgraceful punishments of the law, that is, the pillory. For to fill up a blank instrument, after the seal is put to it, is forgery by the law of the land; and I had once the curiosity to advise with one of the ablest lawyers in England about it, who assured me it was so; and although I urged the constant practice of every diocese in England, against it, he answered, ' that would not alter the law, but whosoever shall insert any thing into an instrument, after the seal is put to it, will certainly be found guilty of forgery in Westminster-hall, .whenever prosecuted there for it. And, if a clergyman once under.