The Rationale of Punishment

Book III

Of Privative Punishments, Or Forfeitures

Chapter VI


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 notion 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.

[RP, Book III, Chapter V, §6] [RP, Book IV]