The Rationale of Punishment

Book IV

Proper Seat of Punishment

Section V


It has already been observed, that it is the nature of all punishments, to affect not only those that are the immediate objects of them, but also those that are connected with the offender, in the way of sympathy, and their participation in his suffering is unavoidable. With these we have nothing to do. What we have to do with are those that the legislator by an express provision of the law inflicts upon persons connected with the delinquent---punishments, the existence of which depends entirely upon the legislator, and which, as he has created, he can abrogate them. Thus under the English law, with respect to property of a particular description, the innocent grandson, by the delinquency of his father, is made to lose the chance he had of succeeding to his grandfather, because no title can be deduced through the corrupt blood of the father: this is what, by English lawyers, is called corruption of blood.

The strength of the argument lies in the metaphor: this cabalistic expression serves as an answer to all objections; the justice of the metaphor turns upon two suppositions.

The one is, that where a man has committed a felony, (stolen a horse for instance) his blood immediately undergoes a fermentation, and, (according to the system of physiology in use upon this occasion) becomes really corrupt.

The other is, that when a man's blood is in this state of putrescency, it becomes just and necessary to deprive his children not only of all real property, of which he was in the enjoyment, but of what might thereafter be derived through him.

The end of punishment, is to restrain a man from delinquency. The question is, whether it be an advantageous way of endeavouring at this, to punish in any, and what cases, in any, and what mode, to any, and what degree, his wife, his children, or other descendants; that is, with a direct intention to make them sufferers.

If a man can be prevented from running into delinquency, by means of punishment hung over the heads of persons thus connected with him, it s not, as in the cases above-mentioned, because it is expected that they should have it in their power to restrain him, by any coercion, physical or mental, of their imposing. It is not that they are likely to have it in their power, by anything they can do. In the case of the wife, it is not very likely: in the case of children already born, it is still less likely: in the case of children not yet born, it is impossible. What is expected to work upon him, is the image of what they may he made to suffer. The punishment then upon theme may be, and it is expected will be, without any act of theirs, a punishment upon him. It will produce in him a pain of sympathy.

First, we will consider the case of the wife, where the punishment consists in being made to lose what is already in specific prospect: viz. The immoveable property in which she had her dower.

It has been doubted whether it were possible for a man to love another better than himself; that is to be affected, not merely momentarily, but for a length of time together, more by the pains and pleasures of another than by his own. Some have denied the possibility, all will admit that it is extremely rare. Suppose it then to happen in one case out of five hundred, and to do all possible honour to the marriage state, let us suppose that this person whom a man loves better than he does himself, is never any other than his wife. But it is not so many as half the number of men of an age to commit crimes, that have wives. Nor is there above one in a hundred who has lands of which a wife is endowed. Upon this calculation, there is not above one man in 50,000 of those that are liable to this mode of punishment, on whom it would operate in as great a degree as if laid on himself. In the remaining 49,999 instances, in order to produce the same effect, more punishment must be laid upon the innocent wife, than would need to be laid upon the offending husband. Let us suppose, for the purpose of the argument, that every man loves his wife half as much as he does himself, on this sup- position, ten degrees or grains (or by what other name soever it shall be thought proper to call so many aliquot parts of punishment, must be laid upon the wife, in order to produce) the effect of five grains laid directly upon the husband. On this supposition, then in 49,999 cases out of 50,000, half the punishment that is laid on in this way, is laid on in waste.

What has been said with regard to the wife, may, without any very considerable variation, be applied to the children. In this latter case, however, generally speaking, the affection is likely to be more uniform and certain, and consequently the contemplation of the suffering they may be exposed to more certainly effacious, in restraining the commission of the act intended to be guarded against. The same method, making due allowance on this score, will therefore apply to this, as to the preceding case.

What follows from this, therefore, is that till the whole stock of direct punishment be exhausted upon the offender himself; none ought in this way to be attempted to be applied through the medium of the innocent.

If there is any case in which forfeiture can be employed with advantage, it would be that of rebellion. Rebellion, not treason, for treason is a name applied to a variety of offenses that have nothing in common but their name. And if it were employed against the descendants of a rebel, it should not be in the way of transitive punishment, nor in the way of punishment at all, but as a measure of self-defence: of self-defence against the mischief that might be expected, not from the criminal who is no more, but from his dependants.

When the husband is engaged in rebellion, it is probable that the affections of his wife are enlisted on the same side. Is it certain? By no means. But, however, it is probable. Is it probable that so also are his children? Is it certain? By no means. All rebellions, and particularly the last Scotch rebellion, afford instances to the contrary. But, however, it is probable. What then should be done? Presume guilt, and make it require an effort to exempt the party from the consequences? No, but presume innocence, and make it require an effort on the part of the Crown to afflict him. Let the Crown be empowered immediately upon the attainder of a rebel, to seize into its hands the possessions, real as well as personal, of his wife, his children, and his other descendants too; with a power to continue the seizure from year to year upon special mention of each person, in so many proclamations to be issued for that purpose: and this too, property, under whatever title it might be held, without suffering the law, as it is now, to be turned into a dead letter, by expedients for giving to property such modification as to render it unforfeitable. This would be a remedy exactly analogous to the suspension of the Habeas Corpus Act: putting the near kindred of a convicted rebel upon the same footing, with respect to their fortunes, which by that Act all men without distinction are put upon, with respect to their liberties. This would be a certain, not a casual safeguard, giving strength to the Government, without bringing guiltless oppression upon the people.

State crimes, with treason at the head of them, may issue from various sources: from indigence, from resentment, from ambition; but in many instances they are crimes of conscience. By lawyers in this country, it is spoken of as one of those almost incredible abominations, at which nature shudders: like murder, not to be committed by any man, but one who has sold himself to the devil. They see not, or would not seem to see, that the character of rebel or of loyalist, turns upon the accidents of war: that men may differ with the most perfect integrity, and with the purest intentions about the title to the Crown, or to such a branch of public power, as well as about a town, or a piece of land; and that it is only party prejudice that makes rebellion and wickedness synonymous. But in those difficult and distracted times, when right and duty are liable to lie confounded, the Hydes, the Falklands, the Seldons, and the Hampdens divide themselves: who can read the recesses of their hearts; men enlist front pure motives in the worse, and from sordid in the better cause. Now, when conscience is the motive, it is always probable that the same conscience which governs the principal may govern the dependants, or in other words, the same that governs the husband and the father, may govern the wife whom he cherishes and the children whom he educates. Rebellion then, is a family offense.

That treason, however, which consists in secretly conspiring in a united nation with a foreign enemy, stands upon a very different footing. This is always among offenses against conscience. It can scarcely arise even from personal resentment: it arises from the most sordid of all sources---lucre. Every one acknowledges the baseness of such a crime; and a man could scarcely be more detested by the public at large, than he would be if discovered by his own family. This is no more a family offense than robbery or murder are family offenses. In this kind of offense, therefore, there is not the same reason for casting the family upon the mercy of the crown. Whatever the family suffers is endured without reason and in waste.

[RP, Book IV, §4] [RP, Book IV, §6]