Front Page Titles (by Subject) CHAPTER IV.: OF PECUNIARY FORFEITURES. - The Works of Jeremy Bentham, vol. 1 (Principles of Morals and Legislation, Fragment on Government, Civil Code, Penal Law)
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CHAPTER IV.: OF PECUNIARY FORFEITURES. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 1 (Principles of Morals and Legislation, Fragment on Government, Civil Code, Penal Law) 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 1.
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OF PECUNIARY FORFEITURES.
We now come to consider the several kinds of Forfeitures; and, first, the sorts of forfeiture that bear the name of pecuniary and quasi-pecuniary: forfeiture of money, and what is exchangeable for money.
A pecuniary forfeiture is incurred when a man is, by a judicial sentence, compelled to pay a sum of money to another, or, as it is in some cases called, a fine.
As to the methods which may be taken by the law to inflict a punishment of this sort, they are as follows:—
1. The simplest course is to take a sum of money, to the amount in question, out of the physical possession of the delinquent, and transfer it into the physical possession of the person who is to receive it; after which, were he to meddle again with the money so taken, he would be punished just as if he had meddled with any other parcel of money that never was in his possession. This course can only be taken when it happens to be known that the delinquent has such a sum in his possession, and where it lies. But this is seldom the case.
2. The next and more common expedient is to take such and such a quantity of what other corporal effects he may have in his physical possession, as, if sold, will produce the sum in question, and to make sale of them accordingly, and bestow the produce as before.
3. Another expedient is, to make use of compulsive means to oblige him to produce the sum himself. These means will be either, 1st, The subjecting him to a present punishment, to be taken off as soon as he has done the thing required; or, 2d, The threatening him with some future punishment, to be applied at such or such a time, in case of his not having done by that time the thing required.
4. A fourth expedient is, to take such property of his, whether in money or other effects, or whereof, though the legal right to them, or in a certain sense the legal possession of them, is in him, the physical possession is in other people. As the existence of such legal right, and the place where the effects in question are deposited, are circumstances that can seldom be known but by his means, this makes it necessary to apply compulsion to him, to oblige him to give the requisite information.
Of these four expedients, the first and second commonly go together, and are put in practice indiscriminately at one and the same operation. The officer to whom the business is entrusted, if he finds money enough, takes money; if not, he takes other effects to make up the deficiency. The first, then, may, in future, be considered as included under the second.
In England, the second and the third have both of them been in practice from time immemorial: not indiscriminately, however, but according to the name that has been given to the punishment by which the money has been exacted. When this punishment has been called a fine, the third method has been exclusively employed: when it has been called damages, the second and third have been employed together—not, indeed, in their full force, but under certain restrictions, too particular to be here insisted on.
The fourth is comparatively of late invention. It was first applied to traders by one one of the bankrupt laws, and has since been extended by the insolvent acts to persons at large, where the obligation they are under to pay money bears the name of debt. Such is the case in many instances where that obligation is imposed with a view to punishment.
Pecuniary Forfeitures examined.
1. As to the evils produced by a punishment of this kind, they are all reducible to the pain of privation occasioned by the loss of so much money.*
2. Pecuniary forfeiture shares with penal servitude in the striking advantage of being convertible to profit.
The quantity of profit is not limited in this case as in that. This is its peculiar excellence; and this it is that adapts it particularly to the purpose of compensation.
3. In respect of equality, it is not less advantageous. No punishment can be made to sit more equally than this can be made to sit on different individuals; so as the quantum of it be proportioned to the means which the delinquent has of bearing it. For money (that is, the ratio of a given sum of money to the total sum of a man’s capital) we have already shown to be the most accurate measure of the quantity of pain or pleasure a man can be made to receive. The pleasures which two men will be deprived of, by being made to lose each a given part (suppose a tenth) of their respective fortunes, will in specie perhaps be very different; but this does not hinder but that, on taking into the account quantity on the one hand, and actual expectations and probable burthens on the other, they may be the same: they will be the same as nearly as any two quantities can be made to be so by any rule of measuring. It is from his money that a man derives the main part of his pleasures; the only part that lies open to estimation. The supposition we are forced to follow is, that the quantities of pleasure men are capable of purchasing with their respective capitals are respectively equal. This supposition is, it must be supposed, very loose indeed, and inaccurate, because the quantity of a man’s capital is subject to infinite fluctuations, and because there is great reason to suppose that a richer man is apt to be happier, upon an average than a poorer man. It is, however, after all, nearer to the truth than any other general suppositions that for the purpose in question can be made.
4. In point of variability, it is evident nothing can excel this mode of punishment, as far as it extends. It commences at the very bottom of the scale. In this respect it has greatly the advantage over corporal punishments, which are always complicated with a certain degree of infamy; while in the instance of pecuniary punishments, no other infamy is produced than what is necessarily attached to the offence.
5. In respect of frugality. Pecuniary punishment, especially when the relative quantum of it is great, is liable to a disadvantage which balances in some degree against the advantage which it has of being convertible to profit. Along with the delinquent, other parties who are innocent are exposed to suffer; to wit, whatever persons were comprised within the circle of his dependents. This suffering is not the mere pain of sympathy, grounded on the observation of his suffering: if it were, there would be no reason for making mention of it as belonging in a more especial manner to the present mode of punishment. It is an original pain, produced by a consciousness of the loss which they themselves are likely to incur by the impoverishment of their principal. This evil, again, is not a mere negative evil; the evil which consists in the not being to have the comforts which, had it not been for his impoverishment, they would have had. If it were, there could be no more reason for taking it into the account on this occasion, than the pain of sympathy; for, whatever it be, it is balanced, and that exactly, by the pleasure that goes to those persons, whosoever they be, to whose profit the money is applied. The pleasure resulting from the use of that money is neither diminished nor increased by the operation: it only changes hands. The pain, then, that is peculiar to this species of punishment, is neither more nor less than the pain of disappointment produced by the destruction of those expectations which the parties in question had been accustomed to entertain, of continuing to participate in the fortune of their principal, in a measure proportioned to that in which they had been accustomed to participate in it.
6. In point of exemplarity, it has nothing in particular to boast of. At the execution of it, no spectacle is exhibited: the transfer of a sum of money on this account has nothing to distinguish it from the case of an ordinary payment. It is not furnished with any of those symbolical helps to exemplarity which belong to most punishments of the corporal kind. Upon the face of the description, the exemplarity it possesses is in proportion to the quantum of it; that is, in the ratio of the quantum of the forfeiture to the capital of him whom it is to affect.
There is one case, however, in which it is particularly deficient in this article: this is when it is laid on under the shape of costs. Upon the face of the law, nothing occurs from whence any adequate idea can be drawn of what eventually turns out to be the quantum of the punishment.
7. In point of remissibility, it is in an eminent degree advantageous. Under no other mode of punishment can reparation be made for an unjust sentence with equal facility.
8. In point of popularity, this punishment exceeds every other. It is the only one of any consequence against which some objection or other of the popular cast has not been made.
9. In point of quantity, pecuniary forfeitures are susceptible of varieties which may have considerable influence on their effects.
The quantum of such a forfeiture, as inflicted by statute or common law, may be either discretionary or indeterminate; or if determinate, it may be either limited or fixed: and in either case, it may be determined either absolutely or by reference. In the latter case, with regard to the standards by which it is determined, it would manifestly be in vain to attempt to set any bounds to their variety. The circumstances most commonly made choice of for this purpose are—1. The profit of the offence; 2. The value of the thing which is the subject-matter of the offence; 3. The amount of the injury; 4. The fortune of the offender.
In England, a punishment of this kind is known in different cases by different names, which have nothing to do with the nature of the punishment (that is, of the suffering) itself, nor essentially with the manner in which it is inflicted. They are taken only from the accidental circumstance of the manner in which the produce of the punishment is disposed of.
When this produce is given to the king or his grantee, the punishment being left unlimited by the legislature, after the quantum of it has been settled by a judge, it is called Fine.
When, after being limited by the legislature, it has been settled by the judge, the name employed to denote it by, howsoever applied, has commonly been the general term of Forfeiture.
When the quantum of it has been left unlimited by the legislature, and the produce of it given to a party injured by the offence, the punishment is called Damages. In this case, the settling of the quantum has generally been committed to a jury.
Of Quasi-pecuniary Forfeitures.
By quasi-pecuniary forfeitures, I mean the forfeitures of any kind of property that is not money, but is of such a nature as admits of its being exchanged for money.
The enumeration of the different species of property belongs more to a treatise upon civil law, than to a work upon punishments. As many species of property, so many species of forfeiture.
The observations we have made upon pecuniary punishments may in general be applied to quasi-pecuniary punishments. The evil produced by their infliction may be estimated according to the pecuniary value lost; but there is one exception to be made with respect to objects possessing a value in affection. An equivalent in money will not represent any of the pleasures attached to these objects. The loss of patrimonial lands, of the house which has passed from father to son in the same family, ought not to be estimated at the price for which those lands or that house would sell.
Punishments of this kind are in general more exemplary than pecuniary punishments. The confiscation of lands, of a manor, for instance, more visibly bears the marks of a punishment, attracts the attention of a greater number of persons, than a fine of the same or of a greater value. The fact of the possession is a fact known through all the district—a fact of which the recollection must be recalled by a thousand circumstances, and perpetuated from generation to generation.
These considerations open a vast field for reflection, upon the use of confiscations of territorial property, especially in the case of those equivocal crimes called rebellions or civil wars. They perpetuate recollections which ought to be effaced. We shall recur to this subject when we speak of Punishments misplaced.—Book IV.
[* ]See Introd. to Morals and Legislation, ch. 3.