The Rationale of Punishment

Book IV

Proper Seat of Punishment

Section VII


I now come to another case, of which examples are to be met with in the penal dispensations of most countries---that of collective punishment, or the punishment of large bodies of men for the delinquencies of a part of them. Under the English law one instance is the punishment inflicted on a whole corporation for the delinquency of some of its members.

When this mode of punishment is justifiable, it is only on the score of necessity. Now to prove this necessity two matters of fact must be made appear; one is, that the guilty could not be punished without the innocent: the other is, that the suffering of the innocent, when added to that of the guilty, will not, in the whole, compose a mass of evil more than equivalent to the benefit of the punishment.

Of these two matters of fact the first is easy enough to be judged of; the latter must be left to vague conjecture.

Of the administering this mode of punishment there are some remarkable instances both by common law, and by statute. The above principles will enable us to form a judgment of the propriety of those several proceedings.

By the common law it is settled that the privileges of a municipal corporation may be forfeited for the misconduct of the corporators: those privileges which are indiscriminately beneficial to all the persons who are free of the corporation, for the delinquency of the majority of any general assembly of those who form the governing part of it. The power, however, of adjudging such a forfeiture has been very rarely exercised, and the insidious and unconstitutional use that was attempted to be made of it in the reign of Charles II, has cast a stigma on the general doctrine; so that it is not likely to be ever more carried into practice. Such a mode of punishment is plainly unnecessary and inexpedient. The particular delinquents in this way may always be ascertained, and that much more easily and infallibly than in the case of ordinary offenses, their acts being, in the very essence of them, public and notorious.

Our own times have exhibited several instances in which punishment, either in reality or to appearance, has been inflicted on a body of men for the misbehaviour of a part of it. I will mention them in their order.

The first I shall mention is the case of the city of Edinburgh, which happened in 1736. A very numerous mob rose up in arms, seized the City Guard, possessed themselves of the city gates, and in defiance of the public authorities, put to death a Captain Porteous, who lay under sentence of death, but had been reprieved. This outrage occasioned an Act of Parliament to be made. By this Act (1O George II, c. 34) a particular punishment is inflicted upon the Lord Provost of the town, for the particular neglect he is there charged with: but besides this, a fine is laid on the corporation.

Of these punishments, that on the Provost, we may observe, was in propriam personam. The fine on the corporation was a collective punishment, falling on as many persons as might find themselves in any shape prejudiced by such fine. Now the ground of applying this latter punishment was not the absolute impracticability of applying any punishment of the proper kind at all. The Provost, as we see, was punished for the negative offense of his neglect. And it appears from another Act, which immediately follows that in question, that a number of persons were actually fugitives for the principal offence. By the second Act these fugitives, in case of their not surrendering within such a time, were to suffer death, as were also those who should conceal them. If then they never surrendered, they remained fugitives, and were punished by banishment. If they surrendered, the presumption was that they would be punished with the ordinary punishment for the offense of which they were guilty; this punishment, however, was not thought sufficient for so enormous and dangerous an outrage. As a supplement, operating in the way of ex post facto law, this fine upon the corporation was thought of. Now from such a punishment, considered in itself, it is not probable that any great effects could have been expected. It served, however, to point the moral sanction against the offence, and to help express, as in the words of the Act, the ``highest detestation and abhorrence'' of the criminal transaction.

In this case, as in that of rebellion, what may be presumed even though the fact be not capable of being established by evidence, is that there was a complicity of affection, in virtue of which all the inhabitants joined in endeavouring to protect the offenders from the visitation of the law.

The next statute I shall take notice of (11 George III, c. 55) in this view is that for punishment of the corruption that prevailed in the borough of New Shoreham. A society calling itself the Christian Society, consisting of a large majority of the electors, had formed itself; and subsisted for several years, for the purpose of selling the seats in Parliament for that borough. On this account all who were members of that society, were, by name, with great propriety, laid under a perpetual incapacitation. So much, considered as a punishment, was a punishment in propria personas. But the proper light in which this measure ought to be considered seems not to have been that of a punishment for in this light it seems hardly to be justified. If it was a punishment, it was an ex post facto punishment, which was the less necessary as there was already a punishment of the same kind provided by the law: to wit, incapacitation, though it be but temporary. But in truth, by much the greatest part of the efficacy which it was expected to have, was built on another ground: on it, as a measure of anticipation: calculated to prevent an evil which, but for such remedy, it was visibly in the power, and as visibly in the intention, of the parties thus disabled to introduce: viz. a succession of representatives brought in in this corrupt and unconstitutional way. It was therefore not punishment for an evil past and gone, but self-defence against an evil still impending. Now the expense at which this benefit was purchased for the community, could not well be less in any instance than in this. The franchise of electorship, like any other branch of public power, is not an usufructuary possession, but a trust: an article of property which a man holds not for his own benefit alone, but for that of the whole community, of which he is himself but one. Those who are in possession of it find means it is true, of deriving from it a personal benefit to themselves: but this is in direct repugnance to the interest of the community and the end of the institution; so that, with reference to the particular interest of the possessor, it may be truly said, it is of the less value to him the more conscientiously he discharges it. In truth, I see not why, with respect to the possessor himself, it ought to be looked upon as anything.

But the legislature went farther: besides incapacitating the electors there named, who were a majority, but not the whole, it went on and communicated the right of election to all the forty-shilling freeholders within a large district, of which the borough in question was but a part. In doing this they lessened the right of the innocent burghers who remained. And as to such part of it, the measure, if it be to be considered as a measure of punishment, must be allowed to have been a punishment in alienas personas. Considered, in this light, it was not expedient, since it was not necessary, for the innocent not only could be but actually were distinguished from the guilty. But in whatever light it may appear, considered with reference to the particular persons subjected to that trifling disadvantage, as a measure of reformation it cannot be too highly praised. It stands as the pattern and ground-work of a great plan of constitutional improvement. {Note}

[RP, Book IV, §6] [RP, Book IV, §8]