The Rationale of Punishment

Book III

Of Privative Punishments, Or Forfeitures

Chapter IV

Section II


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 shewn 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 offense.

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 delinquents 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.

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 cases with regard to the standards by : which it is determined, it would manifestly be in If 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 offense; 2. the value of the thing which is the subject matter of the offense; 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 offense, the punishment is called Damages. In this case the settling of the quantum has generally been committed to a jury.

[RP, Book III, Chapter IV] [RP, Book III, Chapter IV, §3]