The Rationale of Punishment

Book IV

Proper Seat of Punishment

Section IV


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 offense, 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 offense 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, everything that could be done, is done; that this is not found sufficient, and that as an additional check to the commission of this offense, 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 shewn 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 reprizals 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 reprizals 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 reprizals 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.

[RP, Book IV, §3] [RP, Book IV, §5]