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CHAPTER VI.: FORFEITURE OF THE PROTECTION OF THE LAW. - 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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FORFEITURE OF THE PROTECTION OF THE LAW.
A class of forfeitures, as miscellaneous and extensive as any, and the last that we shall now take notice of, is that of the protection, whatever it be, which the law affords a man for the enjoyment of the objects of possession. This is not altogether the same thing with a forfeiture of the possessions themselves. In the instance of some of them, the law, by taking from him the possessions themselves, excludes him, by sure and physical means, from the enjoyment of them. In the instance of others, the law, without taking away from him altogether the physical capacity of enjoying them, punishes him in the case of his attempting to enjoy them. In the remaining cases, the law uses not either of those compulsive methods: it, however, does an act by which the parties on whose choice the enjoyment of the object in question depends, are disposed, on pre-established principles, to put an end to it. It therefore, in this case, likewise becomes still the author of the punishment. This is the case with the forfeitures in which the political sanction produces its effect, not by its own immediate energy, but by the motion it gives, if one may so say, to the moral and religious sanctions.
In the case of forfeiture of protection, the law takes no such active part. All it does is this: it simply withdraws, in part or altogether, that punishment by means of which it protects a possessor in the enjoyment of those several possessions. If, then, every man refrain from disturbing him in the enjoyment of any such possession, it is well the law does nothing of itself to prompt them to it. But if any persons of their own motion choose to disturb him, it is also well the law does nothing of itself to hinder them. Forfeiture of protection is, in short, neither more nor less than the forfeiture of the use of the ministers of justice; that is, of such persons whose business it is to protect the several members of the community in the enjoyment of their respective rights.
Between forfeiture of protection, and forfeiture of capacity, the difference is, that by the latter, the law does what is necessary to prevent a man’s acquiring a possession: in the former, it forbears to do anything to prevent his losing it. When considered with reference to the individual who has forfeited the protection of the law, this species of punishment may be called forensic disability; it forms part of the artificially complex punishment of outlawry; the consideration of which will be subsequently resumed.*
OF THE PROPER SEAT OF PUNISHMENT: OR SAY, OF MIS-SEATED PUNISHMENT.
What is here meant by mis-seated punishment, is not that which in another place was meant by groundless punishment.
The case in which the epithet groundless was applied to the subject punishment, is that in which, by the supposition, there was no offence in the case—no act to which, by the annexation of eventual punishment, any such character as that of an offence ought, by the legislature, to have been superinduced.
The case in which the epithet mis-seated is applied to the same subject—the case which on the present occasion is in view—is that in which there exists an offence; that is, an act fit to be, as above, converted into an offence—an act to which it is fit that punishment be accordingly attached, and in which case punishment is attached accordingly. Thus far all is right: but what there is wrong in the case consists in this, that punishment is to be found, which, in consideration of the same offence, has been attached to a wrong person; that some persons, one or many, are to be found, on whom, in respect of that same offence, no punishment from which they could have been saved ought to have been attached, but on whom punishment, of some sort or other, from which they might have been saved, does notwithstanding stand attached.
When, in so far as, by appointment of the legislature or of the judge, acting (as in all cases of unwritten or judge-made law) in the place of the legislator, punishment is inflicted on any person by whom no part has been borne in the offence, it may be said to be mis-seated—seated in a place which is not its proper place.
In this case, if, along with the non-offender, no offender suffers, the mis-seated punishment may be, as in practice it has been termed, vicarious: if in the contrary case, extravasated punishment; that is, flowing in a wrong channel.
Punishment ought naturally to be the work of reflection: but whether it be vicarious or extravasated, should there be found an instance in which the infliction of it appears to have been the result, not so much of reflection and thought, as of want of thought—and the mass of such instances will be found but too extensive—in such case it may be termed random punishment.
Punishment (which is mis-seated, and in particular, that which is in an extravasated state), may be so unavoidably or avoidably.
First, as to the case in which the extravasation is unavoidable. On another occasion, in another work, and for another purpose, this case has already been brought to view; viz. under the head of “Circumstances influencing sensibility.”†
Whether in the way and for the purpose of punishment, or in any other way, and for any other purpose, a man cannot be made to suffer, but his connexions, if he have any—always his connexions in the way of sympathy, frequently his connexions in the way of interest (understand self-regarding interest,) are made to suffer along with him; and forasmuch as it can only be by some rare accident that a man can be found who has not, in either of those ways, any connexions; thence it follows, that if, where it is unavoidable, the certainty or probability of its extravasation were regarded as a sufficient cause for forbearing to inflict punishment, it would only be by a correspondently rare accident that any thing could be done for the prevention of offences of any sort; the consequence of which would be general impunity to crimes and other offences of all sorts, and with it the destruction of society itself.
In so far as it is mis-seated, and is not unavoidably so, punishment, it is almost needless to observe, is, with reference to the person on whom it is thrown, groundless: as such it is thrown away; it is so much evil expended in waste:—reformation, determent, disablement—it contributes not anything to any one of the proper ends of punishment—not so much as to vindictive satisfaction for injury: at least, to any mind that is not more or less deranged, it is repugnant to utility, inconsistent with humanity, inconsistent with justice.
To all these it is repugnant; but what it is not repugnant to, is English law, written as well as unwritten; for under both these dispensations, instances of it are to be found—instances altogether deplorable in extent, as well as abundance.
When the epithet unavoidable is on this occasion employed, some such limitative clause as is expressed by the words without preponderant inconvenience, must be understood. For, in point of possibility, punishment, i. e. the infliction of suffering on that score, being on the part of the legislator and the judge an act of the will, to avoid inflicting it will, on this as on every other occasion, be respectively in their power at all times, not only on this but on every occasion. On so simple a condition as that of seeing government, and with it society itself, perish, you may avoid inflicting punishment altogether.
Bearing continually in mind this necessary and not unobvious limitation, in answer to the question, what, in regard to mis-seated punishment, ought to be the conduct of the legislator? two simple propositions may be laid down without difficulty:—
1. One is—Where it is unavoidable, mis-seated punishment may be employed.
2. Where it is avoidable, mis-seated punishment ought in no case to be employed.
Unhappily, there exists not a system of established law which does not exhibit instances in which mis-seated punishment is thus wrongfully employed.
First, as to the case when the application thus made of the matter of punishment is unavoidable—not to be avoided without letting in, in some other shape, evil in such a quantity, as, after deduction made of the evil saved on the score of punishment, shall leave a nett balance on the side of evil upon the whole.
Now, taking the matter on the footing of the principles of utility,—punishment, however mis-seated, not only may be, but ought to be introduced: and on the part of him by whom that principle is embraced, and taken for his constant guide, to say that of punishment so circumstanced that it ought not to be introduced, would be equivalent to a contradiction in terms.
But, says an objector, punishment, in so far as it is inflicted, falls upon the guiltless, and to inflict punishment on the guiltless is to violate one of the most important, and fundamental, and universally recognised principles of justice.
The answer is: This being one of those principles which in substance are continually alluded to, but which in truth are not any where to be found, cannot with propriety be employed in the character of an objection to any rule which, standing expressed in a determinate form of words, is seen to be unexceptionable.
To inflict punishment when, without introducing preponderant inconvenience, the infliction of such punishment is avoidable, is, in the case of the innocent, contrary to the principle of utility. Admitted:—and so is it in the case of the guilty likewise.
To punish where, without introducing preponderant inconvenience, such punishment is unavoidable, is not in either case contrary to the principle of utility;—not in the case of the guilty: no, nor yet in the case of the innocent.
What, then, are the cases in which the application of punishment to the innocent is avoidable? what the cases in which it is unavoidable?
Answer: Wheresoever, punishment not being, in the case in question, in itself undue, it is in your power to apply to the guilty, punishment in as great a quantity as (supposing it actually administered) is commensurate to the end of punishment—namely, without having recourse to the innocent, there the evil, whatsoever it be, that would be produced by the infliction of punishment on the innocent, is avoidable.
Now the fact is, and so it will be found, that (with the exception of such suffering as extravasates and overflows upon the innocent, in consequence of their connexion in the way of sympathy or particular and casual interest) wheresoever the nature of the case admits of the distinguishing who is innocent from who is guilty, the infliction of suffering on the innocent is avoidable.
Define punishment in a certain way, and even the above limitation need not be made. Say that to give it the character of punishment, it is necessary that the suffering that is inflicted should, the whole of it, be directly intentional—that is, either mediately or ultimately intentional; and in that case, such part of the suffering as, in virtue of their connexion with the guilty person, falls unavoidably upon third persons (a wife or husband, children, relations, dependants, friends or creditors, and so forth,) is not punishment—does not come under the denomination of punishment.
This, however, is but a question of words. Take any lot of evil you will, such as it is, it is, whatsoever be its name. Say that it is punishment, the reason for avoiding to produce it, if unavoidable, will not be the stronger; say that is not punishment, the reason for avoiding to produce it, if avoidable, will not be the weaker.
Naturally Extravasating Punishment—Rules concerning it.
In regard to such punishment as comes under the denomination of derivative or naturally extravasating punishment, the following seem to be the rules that may be laid down:—
1. The consideration that the lot of punishment in question comes under the denomination of derivative or extravasating punishment—punishment overflowing upon the guiltless from the guilty—can never of itself constitute a sufficient reason for forbearing to inflict such punishment.
For were that a sufficient reason, punishment could not, in the way of legislation, be appointed in any case.
2. In so far as punishment not coming under this denomination is capable of being inflicted to a sufficient amount, without the addition of any punishment which comes under this denomination; in other words, in as far as properly seated punishment to a sufficient amount is capable of being inflicted without the addition of derivative or extravasating punishment, no such addition ought by the legislator to be appointed, viz. either prescribed or authorised.
3. For so far as, without prejudice to the sufficiency of the remainder, the lot of punishment actually to be inflicted is capable of being cleared of derivative or extravasated punishment (punishment or suffering borne by those who have had no share either in the commission of the offence or in the benefit of the offence)—such clearance ought always to be made.
4. In the account taken of the suffering, for the purpose of any punishment which is about to be inflicted by the judge, such derivative suffering ought always be comprised: comprised, in the first place, in respect of what it is in itself and of itself; in the next place, in respect of the pain which, if inflicted on the innocent connexions of the guilty person, it may be expected to produce, viz. in the shape of a pain of sympathy, in the bosom of the guilty person himself.
5. Accordingly, in the case of a delinquent having such connexions, to the end that the real quantity of punishment may not be greater than in the case of a delinquent in the same degree of delinquency having no such connexions, the nominal may be—and, so far as the deduction is capable of being made with sufficient precision, ought to be—made by so much the less.
6. For the purpose of making any such allowance as may be requisite on this score, proceed thus: In the first place, settle with yourself what would be a sufficient punishment, on the supposition that the delinquent had no connexions: then, inquiring into such connexions, if any, as he has, proceed to make such abatement, if any, as may be requisite on this score.
7. For any such purpose, the view of the judge must not absolutely confine itself to the connexion itself, the outward and visible sign and presumptive evidence of the internal and invisible sympathy, viz. the fact that the delinquent has a wife, has children, has other persons in his dependence. Of the existence of the degree of sympathy naturally and usually attached to the species of relationship in question, the existence of the relationship itself may, it is true, be received in the character of primâ facie or presumptive evidence; such evidence as, in default of evidence to the contrary, may be taken for conclusive.
But supposing any such contrary evidence to be offered, or to be capable of being, without preponderant inconvenience, collected, such presumptive evidence as above mentioned ought not to be taken and acted upon as if conclusive.
If, for example, it appear, that in consequence of ill usage inflicted by him, his wife has been separated from him, it is not right that, on that account, he should be let off with a less punishment, merely because he has a wife: if it appear that, in consequence of ill usage, or desertion, or neglect, on his part, children of his have been taken in hand and provided for by some relation or private friend, or some public institution, it is not right that, merely because he has children, he should be let off with a less punishment, as above.
8. In so far as it is in the nature of the punishment to extract and provide any quantity of matter applicable to the purpose of compensation, the legislator and the judge, respectively acting within their respective spheres, ought not, in the care taken by them to avoid the production of unnecessary mis-seated punishment, to confine themselves to negative measures.
If, for example, either by the general nature of the appointed punishment—imprisonment, for example, or banishment, or death—a separation be made, or, to the purpose in question, by special appointment, can be made, between the lot of the delinquent and the lot of his guiltless connexions, it may be right, out of and to the extent of the pecuniary means of the delinquent, to make a provision for his guiltless connexions.
9. In other words. So far as can be done, without reducing to too low a pitch the suffering inflicted on the delinquent, the claims of any guiltless connexion of his, to be saved harmless from such mis-seated punishment, as would otherwise be made to overflow upon them from the punishment inflicted upon him, should have the preference over the interest of the public purse.
This rule may, without reserve or difficulty, be in its full extent applied to ordinary creditors, to persons whose connexion with the delinquent is accordingly a connexion purely in the way of interest, unaccompanied with any such connexion as in the case of wife and children, or other near relatives, has place in the way of sympathy. For example, to speak particularly and precisely, on the score, and for the purpose of punishment, money extracted from the pocket of a delinquent ought not to be poured into the public purse, such sum excepted as, if any, remains to be disposed of, after satisfaction of all just and bonâ fide demands made, or capable of being made, by creditors.
Punishment apparently, but not really mis-seated—Civil Responsibility.
One class of cases may be marked out, in which a punishment to which it may happen in appearance to be mis-seated, is not mis-seated in reality. The offence is committed by A, who is a person under power; the punishment is inflicted on B, in whom the power resides. In other words, the superordinate is made responsible for the subordinate.
To this class of cases may be aggregated the following:—
Responsibility of the husband for the wife.
Responsibility of the father for the children.
Responsibility of the guardian for his ward.
Responsibility of the madman’s keeper for the madman.
Responsibility of the gaoler for his prisoners.
Responsibility of the sheriff for the gaoler.
Responsibility of the military commander for his subordinates.
Responsibility of the master for his servants.
In all these cases, though to appearance the punishment may be mis-seated, yet in point of fact the punishment is inflicted on the person having the power, not under the notion of innocence on his part, but in contemplation of delinquency on the score of negligence for an ill choice of, or want of attention to, his subordinates. It is on his part a transgression of the negative cast, consisting in the omitting to take proper precautions for the prevention of the positive offence committed by his subordinates.
Under our law, the sheriff is punished if any of the prisoners under the gaoler’s custody escape. The sheriff has not the immediate custody of the prisoners; his other duties are incompatible with that. From this circumstance alone, then, there is no reason for supposing any complicity on his part. But the gaoler is appointed by him; and the object of the law is to render him circumspect in his choice. The gaoler himself is the person immediately responsible, but as the safe custody of prisoners is a matter of the highest importance, the punishment levelled at the sheriff is in the highest degree expedient, and the more so as the amount of it is in certain cases left to the discretion of the judge.
The responsibility thus imposed on superiors for the acts of their subordinates, is founded not only on the reasons above mentioned, but on others equally substantial, which have been more particularly developed before.*
Mis-seated Punishment, Varieties of
Punishment is mis-seated in either of two cases:—1. Where the delinquent himself is not made to suffer at all, but some other is in his stead; 2. When the delinquent himself is punished, and some other guiltless person with him, in virtue of an express provision of the law.
If the delinquent himself be not punished, but some other person be, in his stead, the punishment may be called vicarious punishment. It is thus that in the case of a suicide, who is of course removed beyond the reach of human punishment, suffering is inflicted on his wife, his children, or his dependants.
When, in virtue of a social connexion between the delinquent and some other person, it passes from the delinquent upon that other, it may be styled transitive punishment. It is thus that in our law the children and other descendants in many cases are punished with their parents, for the delinquencies of their parents and other ancestors.
Where a large body of persons are punished at once, upon a presumption that the delinquent or delinquents are to be met with in that body, it may be styled collective punishment. Thus it is, in our law, corporations are in several cases punishable for the delinquencies of the co-corporators.
Lastly, where along with the delinquent a person is punished who is a total stranger to him, the punishment in this case may, as far as the stranger is concerned, be styled random punishment. Thus it is, that by our law a person who, after certain acts of delinquency secretly committed, has bought land of the delinquent, loses his money and the land.
Punishment by lot, as is sometimes practised where the delinquents are numerous, as in large bodies of soldiery, comes not within this case. The persons who are made to cast lots are all supposed to be delinquents. There is, therefore, no punishment but what is in propriam personam in this case. It is not random punishment, but random pardon.
In vicarious punishment, we see it is a third person, as the phrase is, that is punished alone. In transitive punishment, a third person with the delinquent, in virtue of his connexion with him. In collective punishment, a large body of third persons, uncertain and indeterminate, because probably the delinquent is of the number. In random punishment, a single third person, who, for certain, is not the delinquent, and with whom the delinquent has nothing to do.
The case in which punishment is in the most palpable degree mis-seated, is that in which it has received the name of vicarious: Upon the person who has had any share in the offence, no punishment is inflicted, yet upon the same occasion, punishment is inflicted upon this and that person who has not had any share in the offence.
In the reign of James I. there lived a Sir Kenelm Digby, who, besides being a person of quality, was an adept in the science of medicine. Dressing of wounds is among the number of those operations that are attended with pain and trouble. By means of a powder of Sir Kenelm’s invention, this inconvenience was saved. In addition to this powder, all that he required for the cure of the most desperate wound, was a little of the blood that had been made to flow from it. To this blood a competent dose of the powder being applied, the wound closed, and the cure was radical. The presence of the patient was no more necessary, than to our present quack doctors. While the compound of powder and blood was lying upon Sir Kenelm’s shelves, the patient might be at the antipodes.
Exactly of a piece with the therapeutics that invented this sympathetic powder, for such was the name which by the author was applied to it, are the politics that gave birth to vicarious punishment.
I was about to exhibit the absurdity and mischief of this mode of punishment, but what end would it answer? A simple statement, that one man is punished for the offence of another, is calculated to produce a stronger impression on the mind, than could be produced by the aid of logic and rhetoric. An error so extravagant could never have been acted on, but from confusion of ideas, or upon suppositions, the improbability of which was altogether lost sight of.
In the English law, the only instance which is to be seen of a case of mis-seated punishment, which is clearly and palpably vicarious, is that of the punishment attached to suicide. It may perhaps be said, that the man himself is punished as much as the case will admit of; that his body used to be pierced with a stake, that he is still buried with ignominy, and that, with respect to him, every thing that could be done, is done; that this is not found sufficient, and that, as an additional check to the commission of this offence, it is necessary to call in aid the contemplation of the sufferings that his wife and children may endure by his death. But the effect of this contrivance is obviously very trifling. The prospect of the pain he shall suffer by continuing to live, affects him more than that of the pain it seems to him they will suffer upon his putting himself to death. He is more affected, then, with his own happiness than with theirs: the selfish predominate in his mind over the social affections. But the punishment of forfeiture, that is, the punishment of those relations and friends, can have the effect of preventing his design upon no other supposition than that the social affections are predominant in him over the selfish; that he is more touched by their suffering than by his own: but this is shown by his conduct not to be the case.
Nor is this all: it is not only nugatory as to its declared purpose, but in the highest degree cruel. When a family has thus been deprived of its head, the law at that moment steps in to deprive them of their means of subsistence.
The answer to this may be, that there is some species of property, which upon this occasion is not forfeited; that the law is not executed; that the jury elude it, by finding the suicide to be insane; and that, moreover, the king has the power of remitting the forfeiture, and of leaving to the widow and orphans the paternal property.
That such is the disposition of juries, and of the sovereign, is undeniable: but is that a reason for preserving in the penal code, a law that it is considered a duty invariably to elude? And by what means is it eluded? By perjury; by a declaration made by twelve men, upon oath, that the suicide was deranged in his mind, even in cases in which all the circumstances connected with the case exhibit marks of a deliberate and steady determination. The consequence is, that every suicide who dies worth any property, is declared to be non compos. It is only the poorest of the poor, who, after making the same calculation that was made by Cato, and finding the balance on the same side, act accordingly, that are ever found to be in their senses, and their wives and children to be proper victims for the rigour of the law. The cure for these atrocious absurdities is perjury: perjury is the penance that, at the expense of religion, prevents an outrage on humanity.
In speaking of vicarious punishment, in order to avoid the confusion that might be produced by its liability to be ranked under this head, it may be necessary to mention a case belonging to the subject of international law—the case of reprisals in war. By a foreign nation, innocent persons are subjected to the most rigorous punishment—to confinement, and even to death, the real author of the offence not being in the jurisdiction of the foreign state. The exercise of this power is justified by necessity, as a means of preventing the infliction of injuries not warranted by the rules of war.
This is not, strictly speaking, vicarious punishment. The reprisals inflicted on his subjects operate upon the sovereign himself, either by the compassion felt for their suffering, or by the fear, if patiently submitted to, of alienating the affections of his people. It is more particularly useful between contending armies. Honour is the principal sanction of the laws of war, but the power of making reprisals is a very necessary coadjutor. In these cases, what humanity dictates is, that the sufferings inflicted on the innocent should be the least possible, consistent with the production of the desired effect; that they should be remissible, and that the utmost degree of publicity should be given to them, either by public declarations, or in any other more effectual manner.
One word more, and I have done. Instances have not been wanting in history, when an innocent person has offered to satiate the resentment of the person injured, and his self-devotion has been received in expiation. What satisfaction did the offended person reap from this sacrifice?—the degradation and shame belonging to it. The glory of the sufferer was the disgrace of the judge.
It may be asked, Is it possible to find any case in which one person may with propriety be allowed spontaneously to subject himself to the punishment designed for another—a son for his father—a husband for his wife—a friend for his friend? Such cases might perhaps be imagined; but it is useless to enter upon the consideration of such deviations from the ordinary course of things.
It has already been observed, that it is the nature of all punishments, to affect not only those that are the immediate objects of them, but also those that are connected with the offender, in the way of sympathy, and their participation in his suffering is unavoidable. With these we have nothing to do. What we have to do with, are those that the legislator, by an express provision of the law, inflicts upon persons connected with the delinquent—punishments, the existence of which depends entirely upon the legislator, and which, as he has created, he can abrogate them. Thus, under the English law, with respect to property of a particular description, the innocent grandson, by the delinquency of his father, is made to lose the chance he had of succeeding to his grandfather, because no title can be deduced through the corrupt blood of the father: this is what, by English lawyers, is called corruption of blood.*
The strength of the argument lies in the metaphor: this cabalistic expression serves as an answer to all objections. The justice of the metaphor turns upon two suppositions:—
The one is, that where a man has committed a felony (stolen a horse, for instance,) his blood immediately undergoes a fermentation, and (according to the system of physiology in use upon this occasion,) becomes really corrupt.
The other is, that when a man’s blood is in this state of putrescency, it becomes just and necessary to deprive his children not only of all real property, of which he was in the enjoyment, but of what might thereafter be derived through him.
The end of punishment is to restrain a man from delinquency. The question is, whether it be an advantageous way of endeavouring at this, to punish in any and what cases, in any and what mode, to any and what degree, his wife, his children, or other descendants; that is, with a direct intention to make them sufferers.
If a man can be prevented from running into delinquency, by means of punishment hung over the heads of persons thus connected with him, it is not, as in the cases above mentioned, because it is expected that they should have it in their power to restrain him, by any coercion, physical or mental, of their imposing: it is not that they are likely to have it in their power, by anything they can do. In the case of the wife, it is not very likely; in the case of children already born, it is still less likely; in the case of children not yet born, it is impossible. What is expected to work upon him, is the image of what they may be made to suffer. The punishment, then, upon them, may be, and it is expected will be, without any act of theirs, a punishment upon him. It will produce in him a pain of sympathy.
First, we will consider the case of the wife, where the punishment consists in being made to lose what is already in specific prospect: viz. The immoveable property in which she had her dower.
It has been doubted whether it were possible for a man to love another better than himself; that is, to be affected, not merely momentarily, but for a length of time together, more by the pains and pleasures of another than by his own. Some have denied the possibility; all will admit that it is extremely rare. Suppose it, then, to happen in one case out of five hundred; and, to do all possible honour to the marriage state, let us suppose that this person whom a man loves better than he does himself, is never any other than his wife. But it is not so many as half the number of men, of an age to commit crimes, that have wives. Nor is there above one in a hundred who has lands, of which a wife is endowed. Upon this calculation, there is not above one man in 50,000 of those that are liable to this mode of punishment, on whom it would operate in as great a degree as if laid on himself. In the remaining 49,999 instances, in order to produce the same effect, more punishment must be laid upon the innocent wife, than would need to be laid upon the offending husband. Let us suppose, for the purpose of the argument, that every man loves his wife half as much as he does himself: on this supposition, ten degrees or grains (or by what other name soever it shall be thought proper to call so many aliquot parts of punishment) must be laid upon the wife, in order to produce, the effect of five grains laid directly upon the husband. On this supposition, then in 49,999 cases out of 50,000, half the punishment that is laid on in this way, is laid on in waste.*
2. What has been said with regard to the wife, may, without any very considerable variation, be applied to the children. In this latter case, however, generally speaking, the affection is likely to be more uniform and certain, and consequently the contemplation of the suffering they may be exposed to more certainly efficacious, in restraining the commission of the act intended to be guarded against. The same method, making due allowance on this score, will therefore apply to this, as to the preceding case.
What follows from this, therefore, is, that till the whole stock of direct punishment be exhausted upon the offender himself, none ought in this way to be attempted to be applied through the medium of the innocent.
If there be any case in which forfeiture can be employed with advantage, it would be that of rebellion—rebellion, not treason; for treason is a name applied to a variety of offences that have nothing in common but their name. And if it were employed against the descendants of a rebel, it should not be in the way of transitive punishment, nor in the way of punishment at all, but as a measure of self-defence—of self-defence against the mischief that might be expected, not from the criminal, who is no more, but from his dependants. When the husband is engaged in rebellion, it is probable that the affections of his wife* are enlisted on the same side. Is it certain? By no means. But, however, it is probable. Is it probable that so also are his children? Is it certain? By no means. All rebellions, and particularly the last Scotch rebellion, afford instances to the contrary. But, however, it is probable. What, then, should be done? Presume guilt, and make it require an effort to exempt the party from the consequences? No; but presume innocence, and make it require an effort on the part of the crown to afflict him. Let the crown be empowered, immediately upon the attainder of a rebel, to seize into its hands the possessions, real as well as personal, of his wife, his children, and his other descendants too; with a power to continue the seizure from year to year upon special mention of each person, in so many proclamations to be issued for that purpose: and this too, under whatever title such property may be held, without suffering the law, as it is now, to be turned into a dead letter, by expedients for giving to property such modifications as render it unforfeitable. This would be a remedy exactly analogous to the suspension of the Habeas Corpus Act: putting the near kindred of a convicted rebel upon the same footing, with respect to their fortunes, which by that act all men without distinction are put upon, with respect to their liberties. This would be a certain, not a casual safeguard, giving strength to the government, without bringing guiltless oppression upon the people.
State crimes, with treason at the head of them, may issue from various sources: from indigence, from resentment, from ambition; but in many instances they are crimes of conscience. By lawyers in this country, it is spoken of as one of those almost incredible abominations, at which nature shudders: like murder, not to be committed by any man, but one who has sold himself to the devil. They see not, or would not seem to see, that the character of rebel, or of loyalist, turns upon the accidents of war; that men may differ with the most perfect integrity, and with the purest intentions, about the title to the crown, or to such a branch of public power, as well as about a town, or a piece of land; and that it is only party prejudice that makes rebellion and wickedness synonymous. But in those difficult and distracted times, when right and duty are liable to be confounded, the Hydes, the Falklands, the Seldens, and the Hampdens, divide themselves: who can read the recesses of their hearts? Men enlist from pure motives in the worse, and from sordid in the better cause. Now, when conscience is the motive, it is always probable that the same conscience which governs the principal may govern the dependants, or in other words, the same that governs the husband and the father, may govern the wife whom he cherishes, and the children whom he educates. Rebellion, then, is a family offence.
That treason, however, which consists in secretly conspiring in a united nation with a foreign enemy, stands upon a very different footing. This is always among offencea against conscience; it can scarcely arise even from personal resentment: it arises from the most sordid of all sources—lucre. Every one acknowledges the baseness of such a crime; and a man could scarcely be more detested by the public at large, than he would be if discovered by his own family. This is no more a family offence than robbery or murder are family offences. In this kind of offence, therefore, there is not the same reason for casting the family upon the mercy of the crown. Whatever the family suffers is endured without reason and in waste.
Disadvantages of this Mode of Punishment.
1. From what has been said, except in the above case of rebellion, it will be pretty apparent that in point of certainty this mode of punishment is eminently deficient. In by far the greater number of cases in which the offence has been committed, this punishment cannot take place for want of a subject on which to operate. A man who has no wife or children, cannot be punished in the persons of his wife and children. Couple this circumstance with the cases in which the offender will have nothing to forfeit, and it will be found that the punishment will be inoperative in nine hundred and ninety-nine cases out of a thousand. Now a punishment that is good in one case only out of a thousand is good for nothing. Some other punishment, then, must be adopted in its room. This punishment must be as much as is enough in those cases, otherwise there had as good be none. Now then as that punishment serves in all other cases, why may it not in this one? If it be enough in those cases, it is, when added to the particular punishment in question, more than enough in this one. Now then, if it be more than enough, it is misery in waste. It is, therefore, for the most part useless, and whenever it is not useless, it is mischievous.
2. After this, it is saying little to observe, that in respect of equability it is not less defective, because, to a man who has no thought about his wife or children, or has taken a dislike to them, it is at least matter of indifference to him whatever may befall them; in this case, therefore, the punishment of them is so much clear waste.
3. In respect of frugality, it is in a very remarkable degree defective: the quantity of evil that it is susceptible of producing is altogether boundless. Consider the chain of domestic connexion, and calculate the number of descendants that a man may have; the suffering communicates from one to another, and destroys the peace of the most extensive families. To produce a direct punishment, which may be estimated as unity, indirect and mis-seated punishment must be created equal to ten, twenty, thirty, a hundred, or perhaps a thousand, &c.
4. It is no less deficient in point of exemplarity. What the delinquent himself suffers is known always by the sentence: it is in many cases visible in the execution. The woman or the child who is made to suffer for his crime, languishes in secret and unavailing misery.
5. The punishment thus withdrawn from its natural course, possesses not so much as the advantage of popularity; it is directly adverse to the general sentiments of sympathy and antipathy. When the delinquent himself is punished, the public vengeance is satiated, and receives no satisfaction from any ulterior punishment: if he be pursued beyond the tomb, and his innocent family be offered up as victims, feelings of pity are excited; an indistinct feeling accuses the laws of injustice, humanity declares itself against them, and on all sides the respect for the laws is weakened.
I now come to another case, of which examples are to be met with in the penal dispensations of most countries—that of collective punishment, or the punishment of large bodies of men for the delinquencies of a part of them. Under the English law, one instance is the punishment inflicted on a whole corporation for the delinquency of some of its members.
When this mode of punishment is justifiable, it is only on the score of necessity. Now, to prove this necessity, two matters of fact must be made to appear: one is, that the guilty could not be punished without the innocent; the other is, that the suffering of the innocent, when added to that of the guilty, will not, in the whole, compose a mass of evil more than equivalent to the benefit of the punishment.
Of these two matters of fact, the first is easy enough to be judged of; the latter must be left to vague conjecture.
Of the administering this mode of punishment, there are some remarkable instances, both by common law and by statute. The above principles will enable us to form a judgment of the propriety of those several proceedings.
By the common law, it is settled that the privileges of a municipal corporation may be forfeited for the misconduct of the corporators; those privileges which are indiscriminately beneficial to all the persons who are free of the corporation, for the delinquency of the majority of any general assembly of those who form the governing part of it. The power, however, of adjudging such a forfeiture has been very rarely exercised, and the insidious and unconstitutional use that was attempted to be made of it in the reign of Charles II. has cast a stigma on the general doctrine; so that it is not likely to be ever again carried into practice. Such a mode of punishment is plainly unnecessary and inexpedient. The particular delinquents in this way may always be ascertained, and that much more easily and infallibly than in the case of ordinary offences; their acts being, in the very essence of them, public and notorious.
Our own times have exhibited several instances in which punishment, either in reality or to appearance, has been inflicted on a body of men for the misbehaviour of a part of it. I will mention them in their order.
The first I shall mention is the case of the city of Edinburgh, which happened in 1736. A very numerous mob rose up in arms, seized the city guard, possessed themselves of the city gates, and in defiance of the public authorities, put to death a Captain Porteous, who lay under sentence of death, but had been reprieved. This outrage occasioned an act of Parliament to be made.* By this act, a particular punishment is inflicted upon the Lord Provost of the town, for the particular neglect he is there charged with: but besides this, a fine is laid on the corporation.
Of these punishments, that on the provost, we may observe, was in proporiam personam. The fine on the corporation was a collective punishment, falling on as many persons as might find themselves in any shape prejudiced by such fine. Now, the ground of applying this latter punishment was not the absolute impracticability of applying any punishment of the proper kind at all. The provost, as we see, was punished for the negative offence of his neglect. And it appears from another act, which immediately follows that in question, that a number of persons were actually fugitives for the principal offence. By the second act, these fugitives, in case of their not surrendering within such a time, were to suffer death, as were also those who should conceal them. If, then, they never surrendered, they remained fugitives, and were punished by banishment. If they surrendered, the presumption was, that they would be punished with the ordinary punishment for the offence of which they were guilty; this punishment, however, was not thought sufficient for so enormous and dangerous an outrage. As a supplement, operating in the way of ex posto facto law, this fine upon the corporation was thought of. Now, from such a punishment, considered in itself, it is not probable that any great effects could have been expected. It served, however, to point the moral sanction against the offence, and to help to express, as in the words of the act, the “highest detestation and abhorrence” of the criminal transaction.
In this case, as in that of rebellion, what may be presumed, even though the fact be not capable of being established by evidence, is, that there was a complicity of affection, in virtue of which all the inhabitants joined in endeavouring to protect the offenders from the visitation of the law.
The next statute I shall take notice of in this view is that for punishment of the corruption that prevailed in the borough of New Shoreham.* A society, calling itself the Christian Society, consisting of a large majority of the electors, had formed itself, and subsisted for several years, for the purpose of selling the seats in Parliament for that borough. On this account, all who were members of that society were, by name, with great propriety, laid under a perpetual incapacitation. So much, considered as a punishment, was a punishment in proprias personas. But the proper light in which this measure ought to be considered seems not to have been that of a punishment; for in this light it seems hardly to be justified. If it were a punishment, it was an ex post facto punishment, which was the less necessary, as there was already a punishment of the same kind provided by the law; to wit, incapacitation, though it be but temporary. But in truth, by much the greatest part of the efficacy which it was expected to have, was built on another ground: on it, as a measure of anticipation; calculated to prevent an evil which, but for such remedy, it was visibly in the power, and as visibly in the intention, of the parties thus disabled to introduce; viz. a succession of representatives brought in, in this corrupt and unconstitutional way. It was therefore not punishment for an evil past and gone, but self-defence against an evil still impending. Now, the expense at which this benefit was purchased for the community, could not well be less in any instance than in this. The franchise of electorship, like any other branch of public power, is not an usufructuary possession, but a trust; an article of property which a man holds not for his own benefit alone, but for that of the whole community, of which he is himself but one. Those who are in possession of it find means, it is true, of deriving from it a personal benefit to themselves: but this is in direct repugnance to the interest of the community and the end of the institution; so that, with reference to the particular interest of the possessor, it may be truly said, it is of the less value to him the more conscientiously he discharges it. In truth, I see not why, with respect to the possessor himself, it ought to be looked upon as anything.
But the legislature went farther: besides incapacitating the electors there named, who were a majority, but not the whole, it went on and communicated the right of election to all the forty-shilling freeholders within a large district, of which the borough in question was but a part. In doing this, they lessened the right of the innocent burghers who remained.† And as to such part of it, the measure, if it be to be considered as a measure of punishment, must be allowed to have been a punishment in alienas personas. Considered in this light, it was not expedient, since it was not necessary; for the innocent not only could be, but actually were, distinguished from the guilty. But in whatever light it may appear, considered with reference to the particular persons subjected to that trifling disadvantage, as a measure of reformation it cannot be too highly praised. It stands as the pattern and ground-work of a great plan of constitutional improvement.‡
Random punishment is the epithet that may be applied to mis-seated punishment, in those cases in which, without previous design, it has fallen upon the innocent by some caprice of the imagination taken up at the moment, when the occasion and the pretence has come for the infliction of it—not so much as even the wretched sort of pretence, which had place in the case of extravasated punishment, having place in the present case.
For the illustration of this modification of mis-seated punishment, we may again refer to the law of forfeiture, to that of deodands, and that of the exclusion put upon testimony, when, for the punishment of an inconjecturable number of innocent persons, through the sides of one delinquent, and by wounds of every imaginable breadth and depth and nature, the fact of his delinquency forms the pretence.
When a man who has a freehold interest in any lands commits an offence, part of the punishment for which is the forfeiture of such interest, and then sells, or mortgages, or in any other manner disposes of that interest, and is afterwards attainted for the offence, the law takes it back from those in whose favour it was disposed of, without deigning to inquire whether they knew anything of his having committed it. An individual commits a secret murder, and sells you an estate: twenty years after he is discovered, prosecuted, attainted. The king, that is, somebody who assumes his name, seizes the estate. If you have devised it, charged it, sold it—if, besides yours, it has passed through fifty other hands, it makes no difference. If it was your wife who had been murdered, it would make no difference: you would lose your wife by the crime, and your fortune by the punishment.
It might be supposed that the law looked upon itself as driven to this expedient by the apprehension of fraudulent conveyances; but this is not the case. In the case of moveable and other personal property, it recognises the practicability of distinguishing fraudulent conveyances from fair: it establishes the latter; it vacates only the former. Yet it is obvious that immoveable property is much less obnoxious to such a fraud than moveable.
With all this the author of the Commentaries is perfectly well satisfied. “This may be hard,” he says, “upon such as have unwarily engaged with the offender.” But what of that? “the cruelty and reproach,” continues he, “must lie on the part, not of the law, but of the criminal, who has thus knowingly and dishonestly involved others in his own calamities.” To one who can reason in this manner, nothing that is established can come amiss. So long as there is the least particle of guilt, not only in him who is punished but in any one else, no law by which punishment is inflicted can be cruel, no law deserving of reproach.
Another instance of random punishment is that of Deodands.
You are a farmer. You employ a waggon. You send your son to drive it: he slips down, is run over and killed. The king, or somebody in his name, is to have your waggon. This is the consolation which the law of England gives you for your loss.
This idea might be improved upon. Let it be a law that when a man happens to break his neck, the people of his parish shall draw lots who shall be hanged to keep him company. The punishment would be greater, but the reason for punishment would be the same.
If, instead of a waggon, it had been a ship that was moving to your son’s death, it would make no difference: though the ship were laden with the treasure of the Indies, it would make no difference; the ship and its lading would be the king’s.
The source from whence this institution flowed is pretty generally known: but it is not perhaps so generally observed that the institution is not a just consequence, even from the ideas then received. It was established, it is not easy to say how early, but however, in the days of Catholicism. In those days, as soon as a man’s soul had left its body, it used to go to a place called Purgatory, there to be broiled for 20,000 years. Now in this life some souls love music, others not. But in that post life which was then to come, all souls were fond of it alike. Luther himself, who ought to know, is positive of it.* Not that all music was to their taste: it was only a particular kind of music, such as only priests know how to sing. But it was not reasonable that priests should sing unless they were paid for it; for the labourer is worthy of his hire. Now when a man died thus suddenly, it was not probable that he should have made any provision by his will for paying them. Therefore it was necessary that somebody else should pay them. So far was in order. But why resort to any other fund than the man’s own property? Was he the poorer for having died a violent death, than if he had died a natural one? or for dying by the effect of a thing in motion, than if he had died by a fall from a thing at rest? And if, after all, he had nothing to pay for himself, could not the parish, or the hundred, or the next abbey, have paid for him?
I would not swear but the sages who invented this notable institution might think to do a spite to the thing, the waggon, the ship, or whatever it was, by making it forfeited; as the Athenians exterminated a stone that struck a man and killed him, that is, carried it out of their country and threw it into another. Many a public institution, which the lawyer admires with humble deference, has had no better ground.
The next instance of random punishment which I would give, consists in the exclusion put upon testimony.
I could wish to give the reader a precise list of the offences to which this punishment is annexed, but this I find to be impossible. Every principle delivered on this subject teems with contradiction. The enumeration which is sometimes made includes nearly every principal crime, comprehending treason, perjury, forgery, and such like crimes, theft, all crimes considered infamous, and felony. As to felony, this is spoken of as if it were a particular species of crime: the case is, that felony is a collection of crimes as heterogeneous as can be conceived, and which have nothing in common between them but the accidental circumstance of being punished with the same punishment. Crimes of mere resentment, or malicious mischief, are by scores of statutes made felonies. Homicide intentional, in the heat of passion; or unintentional, by an unlucky blow, is felony: rape is felony: crimes of lewdness are felonies. What is not felony? The evidence of persons excommunicated is not received: the reason annexed by some has been, that these individuals, not being under the influence of religion, cannot be believed on their oath. By others it has been generally said, that those who converse with excommunicated persons are excommunicated with them, and consequently they cannot be admitted to receive any questions from a court of justice. Of this nature are the reasons frequently given for existing laws in the books of English jurisprudence.
Without longer stopping, therefore, to ascertain in what cases testimony is refused, let us proceed to examine if this be a proper punishment; that is to say, if there be any case in which, because a man has committed a crime, his testimony ought to be rejected.
The only reason there can be for rejecting a witness is this, that it appears more probable that after every expedient that can be put in practice to get the truth of him, the account he gives of the matter would rather mislead those who are to judge, than set them right. I say mislead the judges; I do not say be a false one: for whether it be true or not, is what to the purposes of justice is a matter of indifference. The point is for them to (be enabled to) form such a notion of the fact in dispute as shall prove a true one: by what means they come at it is no matter. He would commit perjury indeed; but that is quite another evil, and an evil for which there is another and more proper remedy than that of prematurely repelling his evidence. This want of veracity, therefore, is no objection to him, unless he has the faculty of maintaining to the last, such a degree of consistency and plausibility as shall enable him to conceal it.
As to want of veracity, it should be considered that the greatest liar in the universe rarely swerves from truth (I mean what to him seems truth) in one instance out a hundred. The natural bent of all mankind is to speak truth: it requires the force of some particular interest, real or imaginary, to overbalance that propensity. Some men, it is true, are made to deviate from it by very slender motives, but nobody tells a lie absolutely without a motive.
Now then, do but suppose him absolutely without any interest to give a false account, and the most abandoned criminal that ever was upon the earth might be trusted to as safely as the man of the most consummate virtue. Where, then, lies the difference? In this, that the profligate man may easily be made to fancy he has such an interest in telling falsehood, as shall preponderate over the interest he fancies he has in speaking truth; the easier, the more profligate he is: the man of virtue, not without difficulty: the more difficulty, the more he is confirmed in virtue.
Now a motive to speak truth, in cases where he is called upon by law to give his testimony, is what every man has, and unless he be insane, must conceive himself to have: he has it from the political sanction, in the penalties which the law denounces against falsehood in such cases: he has it from the moral sanction, in the infamy annexed by men in general to such a conduct: he has it from the religious sanction, unless he be an atheist, and except in as far as dispensations or absolutions may intervene to take it off.
The interest which a man may have, on the other hand, to speak falsehood in such a case, may be distinguished into a natural interest, and an artificial one. What I mean by a natural interest need not be explained. I call that an artificial interest, which he may derive in the way of reward, by the express act of him who has some natural interest. If you are at law for an estate, you have a natural interest in my telling any story, true or false, that may serve to establish your title. If you give me a reward for telling such a story, I have an artificial one, which is raised up in me by you.
Now, whether a man have a natural interest or no in the fate of a contest, is in general pretty easy to be known; it is a question of itself: and if determined in the affirmative, the tendency of the law is, to reject a man as a witness, upon that distinct ground, and without regard to his probity or improbity.
The question is here concerning an artificial interest, the existence, or non-existence of which does not so readily lie within proof; but the lights that are to be had, are to be drawn from such circumstances as may appear to affect the description of a man’s general character. Thus much only is certain, that in proportion as a man is more or less confirmed in virtue, the less or the more likely is any artificial motive which may be presented to him, to preponderate over the motives he has to speak truth, and be effective, so as to determine him to speak falsehood.
It is here proper to be upon our guard against a vulgar error. Men of narrow experience, of hasty judgment, and of small reflection—in a word, the bulk of mankind, have in a manner but two classes in which to stow a man, in respect of merit: they know but of two characters, the good man and the bad man. If, then, they happen to view a man’s conduct, in any instance, in a favourable light, up he goes among the good men; if in an unfavourable, down he goes among the bad men; and they fix a great gulph between the two. If their opinion, with respect to either come to change, as they have no intermediate stages, he is removed from his station, with the same violence as he was at first placed in it. But men of observation and cool reflection, who have had patience and sagacity to make a narrow search into human nature, learn to correct the errors of this indolent and hasty system; they know that, in the scale of merit, men’s characters rise one above the other, by infinite and imperceptible degrees; and, at the same time, that the highest is distant from the lowest, by a much less space than is commonly imagined.
Those who admit the truth of these observations will see how precarious and ill-contrived a means the law takes to come at truth, by giving into the error above noticed; by making one class of men which it will hear, and another of men whom it will not suffer to be heard in any case, or on any account. In a word, (for this is the sum of the argument) they will see, that while the law enjoins the exclusion of any class of persons, at all events, in order to avoid a small degree of possible inconvenience, it embraces a great degree of certain inconvenience.
It is manifest, that the smaller the number of persons is whom it guards against, in proportion to those from whom it remains still exposed to danger, the less is the advantage gained by it. Whom, then, does it guard against? a few hundreds, perhaps, in a nation. And from whom does it remain exposed to danger? the rest of the nation. For who is it from whom it does not stand exposed, in any case, to a danger of this kind, I declare is more than I can imagine. If there be any man now living that can lay his hand upon his heart, and solemnly declare, that in no instance, trivial or important, has he ever departed from the rigid line of truth, upon the prospect of advantage, he has either more hypocrisy than I would wish to impute to any man, or more virtue than I can persuade myself to exist in any man. The only person about whom I can be sure, and who yet would not willingly yield the palm of integrity to any one that lives, nor barter any atom of it for any other honour the world has to bestow, is far, I know, from the thoughts of making any such pretensions.
There are cases in which the best man alive could scarcely be credited without danger: there are cases in abundance, in which the worst man alive might be believed with safety. Such are all those, where the circumstances of the case afford the witness no natural motive to speak falsely; and the circumstances of the parties are such as can afford him no artificial one. I am, for instance, as bad a man as, for the supposition’s sake, you would choose to have me. I happen to see one man beating another, who afterwards seeks his remedy at law against the oppressor, and calls me as a witness, and the only witness. Now it has happened, that I have been convicted of perjury, over and over again, as many times as you please: I would swear my father’s life away for a penny. But the parties are, both of them, miserably poor; they neither of them have a penny to tempt me with. What, then, is there to induce me to give a false account of the matter? nothing. What, then, is the danger of admitting me? none at all. What the consequence of rejecting me? the triumph of oppression. Now, in a case like this, there is nothing singular nor improbable; a thousand such might a man figure to himself with ease.
Having proceeded thus far, I will venture to advance this position, that a man’s testimony ought not to be rejected at all events, even for the crime of perjury: if not for perjury, it will follow, à fortiori, not for any other crime. I will just offer a farther consideration or two, in support of this opinion; I will then give a short sketch of the evil consequences that result from such an absolute rejection; I will, thirdly, offer an expedient, which, I think, would answer every good purpose of it; and, lastly, I will state the different degrees of reason there may be for extending the incapacity to the different crimes that may be proposed.
Now, then, let the crime of which the witness has been convicted be that of perjury. He has, however, no natural interest to speak false: if he have, that forms another ground of disability, which is not here in question. If, then, he have an artificial interest, it is the party that must give it him. But in this case, the party must be a suborner: unless, then, he stand already convicted of subornation on a former occasion, there can be no ground for repelling the perjured witness, without peremptorily attributing to another man, whose character stands unimpeached, a crime of a similar complexion—a supposition which no rule, either of law or reason, seems to warrant.
I cannot help thinking, that these rules of peremptory incompetency would never have been laid down, had those who first started them gone deliberately and circumspectly to work, and carefully examined the consequences on both sides of the question. The evil consequences of the rule, they seemed scarcely to have cast their eyes on. They seem to have gone to work, as if they had witnesses enough in every case to pick and choose out of; on which supposition, certainly, they would do well to discard the worst, to pick out and retain none but the best, and such as should be proof against all exception. All this was mighty well, provided there was no danger on the other side. But the danger on the other side is terrible. It is a truth, however, which I can scarce help looking upon as very obvious, and certainly it is an important one, that to mark any man out as disabled from witnessing at all events, is to grant all men a license to do to him and before him all manner of mischief whatsoever. Now, as to what may be done to him, that indeed may be taken as so much punishment of the proper kind, though it would be a strange, loose, and inconsiderate method of laying a man under proscription.*
But as to mischief that may be done to others in his presence, or which, in any other way, others may suffer for want of his evidence,—the case of Pendoch and Mackendar† may serve as an example. By the statute which is called the Statute of Frauds and Perjuries, three witnesses are necessary to a will of land. In this case, the will had three witnesses, as it ought to have. Two stood unimpeached; but it was found out that the other, once upon a time, had been convicted of petty larceny, and been whipt. This was before the attestation—how long, it does not appear. The suit was commenced five years afterwards. This man being deemed a bad witness (and as such, not to be heard,) there wanted the requisite number, and the man, in whose favour the will had been made, lost the estate. One may imagine the shock to a person, who thought he had all the security for his estate which the law could give him; one may imagine the surprise and indignation the testator, were he to arise out of his grave, must feel, at seeing his disposition vacated by an incident, which common prudence could never have prompted him to guard against, unless, by looking in a man’s face, he could have told that once in his life he had been guilty of a trifling breach of honesty, and been whipt for it.
The limits of this design will not permit me to expatiate upon this subject any further, by suggesting cases of like mischief that are liable to happen, or collecting such as are known actually to have happened. This general sketch of them being given, the intelligent reader will readily excuse me from entering into the detail.
Because a woman has been guilty of perjury, or any other offence which has rendered her testimony inadmissible, it is just that she should be punished; but is it just, is it proper, that she should be delivered over to the lust of every man to whom her beauty may become an object of desire? If the law were known to be, in this respect, as it is said to be, the nation would become a scene of lust, cruelty, and rapine; but it happens here, as it will sometimes happen in other instances, one mischief operates as a palliative to another: the extreme absurdity of the law is veiled by men’s utter ignorance of its contents.
Let us turn back and look on the other side. What, then, would be the mischief of admitting the testimony of a man thus stigmatized? I see none: none at least that can for a moment stand in competition with the mischief on the other side. “But the person so stigmatized does not deserve to be believed!” Does he not? why am I to think so? because you say so? No; but because men in general will say so too! And will they then? Yes, surely will they. I do believe it, and therefore it is I say there is no danger. Let him be known for what he is, and a jury will be under the strongest bias not to believe him. Their prejudice will bear strong against him; nor will any thing less than the strongest degree of probability, and the most perfect consistency in the whole narration, be sufficient to induce them to believe it. I see not what it is that should justify the extreme distrust which judges have shown of juries in establishing this rule; especially as, in case of a conviction of an innocent person, which is the greatest danger the case is open to, it is so entirely in the power of the judge to save the convict. The general prejudice of mankind, as we have before observed, leads them to exaggeration in the judgment they pronounce of the general tenor of a man’s character from a single action; in particular, to spread the stain that a single act of delinquency brings upon a man’s character, farther than, according to reason, it ought to go. It is from having been the dupes, as I take it, of this prejudice, that even judges—the ancient judges who first laid down the law upon this point, first broached this rule. It may always be expected to work, at least as strongly as it ought to work, upon juries taken from the body of the people.
Were it then abolished, the conduct of juries then, you think, would nearly be the same as if it subsisted? I think it probable. What advantage, then, would you gain by the abolition? This great one: the chance that a delinquent might have of impunity in such a case, would no longer be visible upon paper; he would no longer see a formal licence given him, by the letter of the law, to commit all manner of wickedness in presence of an object circumstanced like the party in question: if a guilty person were acquitted upon that ground, it would appear as if, upon the whole, the story was not credible, and that, in fact, no such crime was committed as was charged; not that, having been committed, it was suffered to go unpunished. This, then, is the advantage; and I think a more conclusive one cannot well be required to justify any institution.
All that prudence requires in such a case is, that the character of the witness, that is to say, the offence of which he was formerly guilty, should be known, that those who are called upon to weigh his testimony may be able to judge how far he is to be believed.
Suppose the party has been guilty of perjury: this crime most particularly affects his credibility. There is a great difference to be observed in the quality of the crime when committed in self-defence, in one’s own cause, and when committed on the subornation of a stranger, and in an attack upon the life of an innocent person. Such distinctions are most important, and readily offer themselves to those who consult the dictates of common sense, and do not suffer their eyes to be blinded by the mist of technical jargon.
The time which has elapsed since the offence was committed, is a consideration of importance. A man in his youth, at fourteen or fifteen years of age, was led to take a false oath, and was convicted: he becomes reformed; during thirty or forty years he maintains an unimpeachable character. His reformation is of no consequence: the record of his forgotten crime is dragged from the dust with which it had been covered; in accordance with this rule, his testimony must be rejected: upon every principle of common sense and of utility, it would have been equally admissible with any other.
In the prosecution of criminals, the testimony of those who have a manifest interest in their condemnation is not refused, whether that interest be pecuniary, or arising from a desire of vengeance. Such testimony is, however, received with distrust and caution. This is well;—be equally distrustful of a witness, whose previous conduct has rendered him suspected; but hear him, and examine whether the circumstances of his crime are of a nature to affect his credibility on each particular occasion.
Cause of the Frequency of Mis-seated Punishment.
As to the cause of the abuse thus made of punishment, it lies not very deep below the surface. It lies partly in the strength of the self-regarding and dissocial passions; partly in the weakness of the intellectual faculties on the part of legislators, and of judges acting in the place of legislators.
It lies more particularly in the strength of the dissocial passions, and in that one of the false principles, rivals to the principle of utility, viz. in the principle of sympathy and antipathy, in the production of which the dissocial affections, influenced and swollen to that pitch in which they assume the name of passion, have so large a share.
Urged on by the dissocial passion of antipathy, misguided by the principle of sympathy and antipathy, men in power have punished, because they hated; taking as a sufficient warrant for the infliction of the sufferings which they proposed to themselves to inflict, the existence of that hatred, of which, as towards the person in question, in consideration of the act in question, the existence was demonstrated to them by their own feelings.
That which was the cause, became naturally the measure of what was done: punishing, because of his hate, it was, to the man with the strong hand, matter of course to punish in proportion to his hate.
A lot of punishment, in which so much suffering, and no more, would fall upon the innocent, as, consistently with the application of punishment to the guilty, was unavoidable, sufficed not for the gratification of his hate: of that satisfaction which consists in his contemplation of another’s suffering, he would have as much more as was to be had; and frequently there was scarce a price, so as it was at the expense of others only that that price was made up, and not any part at his expense—there was scarce a price at which he was not content to purchase it.
OF COMPLEX PUNISHMENTS.
[* ]Book V. ch. v.
[† ]Introduction to Morals and Legislation.
[* ]See—Of Substitutive Satisfaction, p. 383.
[* ]As the subject is involved in a good deal of obscurity, it may be necessary, in order that the expediency of this mode of punishment may be understood, to state the nature of it a little more explicitly.
[* ]It will not, it is hoped, be understood that any stress is meant to be laid upon the particular number here employed: the reader may put in numbers for himself: they are merely given as a specimen of the manner in which such an inquiry ought to be conducted.
[* ]Those who have read Lord Clarendon’s History, will remember what grievous complaints that historian, in speaking of the Duke of Albemarle, makes of the duke’s presbyterian wife.
[* ]10 Geo. II. c. 34.
[* ]11 Geo. III. c. 55.
[† ]The punishment, if any, that was thus inflicted on the innocent burghers, consisted in the pain of apprehension that among the new electors would be found some, and perhaps a majority of the whole, who would make an improper use of the power of which they were made partakers.
[‡ ]One thing let me be permitted to mention, which I think would have been an improvement, and would have done all that could be wanting to reconcile the measure to the strict principles of ordinary justice. A part of the electors stood in a meritorious light; they had either the ment to withstand, or the good fortune to escape, the temptation to which their co-electors yielded. Yet by the statute in question, the condition of this meritorious part, so far from being bettered, was rendered worse than it was before. There was a method by which this might, I think, have been prevented, without the least prejudice to the reforming part of the measure, and at the same time a signal encouragement have been held out to conscientious electors. The expedient was a simple one. It was but the adding to the number of votes which each of the sound voters should have under the new constitution, in such manner that the weight of each man’s suffrage should bear the same proportion to that of the rest under the new constitution as it had done under the old one. The benefit thus reserved would in such case have told for more than it was in reality. The men, by being only not punished, would have seemed to be rewarded: they certainly would have been rewarded in point of honour. If a religious attention were constantly to be paid to private subsisting interests, which being temporary may always be provided for at a small expense, reformation would be delivered from much of that opposition which it is at present apt to meet with. One may say to reformers, serve the whole, but forget not that each member is a part of it.
[* ]See Sir J. Hawkins’ History of Music.
[* ]It would be worse, in some respects, than forfeiture of reputation.
[† ]2 Wils. 18.