The Rationale of Punishment

Book III

Of Privative Punishments, Or Forfeitures

Chapter IV


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 of as soon as he has done the thing required: 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 here the effects in question are deposited, are circumstances that can seldom be known but by is 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 e 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 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 in a view to punishment.

[RP, Book III, Chapter III, §2] [RP, Book III, Chapter IV, §2]