The Rationale of Punishment

Book III


Chapter I


We now come to the last of the two grand divisions of Punishments---Privative Punishments, or Forfeitures.

The word forfeiture is never used but with reference to some possession.

Possessions are either substantial or ideal---substantial when it is the object of a real entity (as a house, a field) ideal, when it is the object of a fictitious entity (as an office, a dignity, a right.)

The difficulty of dealing with cases of this description will immediately be seen. Real entities have all a common genus, to wit, substance. Fictitious entities have no such common genus, and can only be brought into method in virtue of the relation they bear to real objects.

Possessions, of whatsoever nature they be, whether real or fictitious, are valuable; and to forfeit them can never otherwise be a punishment, than as far as they are instruments of pleasure or security. By specifying then the sort of persons or things from which the benefit said to belong to a fictitious possession is actually derived, all will be done that can be done towards giving a methodical view of those possessions, and of the penal consequences of forfeiting them.

To investigate, therefore, the several kinds of proper forfeitures, it is necessary to investigate the several kinds of possessions. On this subject, however, as it comes in only collaterally on the present occasion, it will not be necessary to insist very minutely.

Possessions are derived either from things only, or from persons only; or from both together. Those of the two first sorts may be styled simple possessions: those of the other complex.

Possessions derived from things may consist either---1. in money: these may be called pecuniary; 2. in other objects at large. The former may be styled pecuniary, the latter quasi-pecuniary. Accordingly, forfeiture of money may be styled pecuniary forfeiture: forfeiture of any other possession derived from things, quasi-pecuniary. Quasi-pecuniary forfeitures are capable of a variety of divisions and subdivisions: but as these distinctions turn upon circumstances that make no difference in the mode of punishment, it will not be necessary, on the present occasion, to enter into any such detail.

Possessions derived from persons, consist in the services rendered by those persons. Services may be distinguished into exigible and inexigible. By exigible I mean such as a man may be punished (to wit, by the political sanction) for not rendering; by inexigible, such as a man cannot be punished for not rendering; or, if at all, not by any other sanction than either the moral or the religious. The faculty of procuring such as are exigible is commonly called power, to wit power over persons: the faculty or chance of procuring such as are inexigible depends, in great measure, upon reputation; hence result two farther kinds of forfeiture: forfeiture of power and forfeiture of reputation.

Reputation may be distinguished into natural and factitious; by factitious I mean that which is conferred by rank or dignity.

Credibility is a particular species of reputation: the reputation of veracity. Hence we have two further kinds of forfeiture, both subordinate to that of reputation: forfeiture of rank or dignity, and forfeiture of credibility.

As to complex possessions, and the forfeitures that relate to them, these are too heterogeneous to be arranged in any systematic method: all that can be done is to enumerate them. Thus much only may be said of them in general, that the ingredients of each of them are derived from both the classes of objects which we have mentioned as being the sources from which the several kinds of simple forfeitures are derived.

It should seem, however, that they might all of them, without any great violence, be brought under the title of conditions. Conditions then may in the first place be distinguished into ordinary and peculiar.

Ordinary conditions or modes of relationship, may be distinguished into natural and acquired. By natural conditions I mean those which necessarily belong to a man by birth: to wit in virtue of either his own birth or that of some other person to whom he stands related. Such as that of son, daughter, father, mother, brother, sister, and so on through the several modes of relationship, constituted by the several degrees of consanguinity. To stand in any of these relations to such or such a person may be the source of various advantages. These conditions, it is plain, cannot themselves be forfeited; a man, however, may, and in some instances has been said to have forfeited them, and may actually be made to forfeit many of the advantages attending them.

Acquired conditions may be distinguished in the first place into political and religious and political again into domestic and public. Domestic conditions may be distinguished into family conditions and professional. Family conditions are---1st. The matrimonial; or that of being husband or wife to such a person; 3d and 4th, that of being guardian or ward; 5th and 6th, that of being master or servant to such a person.

By public political condition, I mean that of belonging to any voluntary society of men instituted on any other than a religious account.

By religious condition, I mean that of belonging to any society or sect instituted for the sake of joining in the performance of religious ceremonies.

Of conditions that may be termed peculiar, the several sorts may, it should seem, be all comprised under the head either 1st. of conditions constituted, either 1st, by offices; or 2dly, by corporation privileges. A right of exercising an office is an exclusive right to render certain services.

Conditions constituted by offices may be ranked in the number of complex possessions, inasmuch as they are apt to include the three simple possessions following: to wit, a certain share of power, a certain rank, and a certain salary, or fees or other emoluments coming under the head of pecuniary or quasi-pecuniary possessions.

Of offices there is an almost infinite variety of kinds, and a still greater variety of names, according to the almost infinite modifications of rank and power in different countries, and under different governments. This head is, consequently, susceptible of a great variety of divisions and subdivisions; but these it will not be necessary, on the present occasion, to consider.

Corporations may be distinguished into political and religious. Under the head of religious corporations may be included the various monastic orders established in countries professing the Roman Catholic religion.

As to political corporations, the catalogue of the possessions that may be annexed to the condition of one who is a member of those bodies are so various, that no other account need, on the present occasion, or indeed can be given of it, than that there are scarce any of the simple possessions above enumerated, but may be included in it.

To the condition of one who is a member of a religious order or corporation may be annexed, besides the above possessions others, the value whereof consists in such or such a chance as they may appear to confer of enjoying the pleasures of a future life, over and above such chance of enjoying the same pleasures as appears to be conferred by the condition or privilege of being an ordinary professor of the same religion.

As an appendix to the above list of possessions may be added two particular kind of possessions, constituted by the circumstance of contingency, as applied in different ways to each one in that list. These are the legal capacity of acquiring, as applied to those articles respectively, and the protection of the law, whereby a man is secured against the chance of losing them, if acquired. These abstract kinds of possessions form the subject of so many kinds of forfeiture: forfeiture of legal capacity and forfeiture of the protection of the law: forfeiture of legal capacity with respect to any possession, taking away from a man whatever chance he might have of acquiring it; forfeiture of protection, subjecting him to a particular chance of losing it.

[RP, Book II, Chapter XII, §4] [RP, Book III, Chapter II]