The Rationale of Punishment

Book IV

Proper Seat of Punishment

Section VIII


Random punishment is the epithet that may be applied to mis-seated punishment, in those cases in which, without previous design, it has fallen upon the innocent by some caprice of the imagination; taken up at the moment, when the occasion and the pretense has come for the infliction of it: not so much as even the wretched sort of pretense which had place in the case of extravasated punishment having place in the present case.

For the illustration of this modification of mis-seated punishment we may again refer to the law of forfeiture, to that of deodands, and that of the exclusion put upon testimony, when for the punishment of an inconjecturable number of innocent persons, through the sides of one delinquent, and by wounds of every imaginable breadth, and depth, and nature, the fact of his delinquency forms the pretense.

When a man who has a freehold interest in any lands commits an offence, part of the punishment for which is the forfeiture of such interest, and then sells, or mortgages, or in any other manner disposes of that interest, and is afterwards attainted for the offence, the law takes it back from those in whose favour it was disposed of, without deigning to enquire whether they knew anything of his having committed it. An individual commits a secret murder, and sells you an estate: twenty years after he is discovered, prosecuted, attainted. The King, that is, somebody who assumes his name, seizes the estate. If you have devised it, charged it, sold it, if, besides your's, it has passed through fifty other hands, it makes no difference. If it was your wife who had been murdered, it would make no difference. You would lose your wife by the crime and your fortune by the punishment.

It might be supposed that the law looked upon itself as driven to this expedient by the apprehension of fraudulent conveyances; but this is not the case. In the case of moveable and other personal property, it recognizes the practicability of distinguishing fraudulent conveyances from fair. It establishes the latter: it vacates only the former. Yet, it is obvious that immoveable property is much less obnoxious to such a fraud than moveable.

With all this the author of the Commentaries is perfectly well satisfied. ``This may be hard'', he says, ``upon such as have unwarily engaged with the offender.'' But what of that? ``the cruelty and reproach'' continues he, ``must lie on the part, not of the law, but of the criminal, who has thus knowingly and dishonestly involved others in his own calamities.'' To one who can reason in this manner, nothing that is established can come amiss. So long as there is the least particle of guilt not only in him who is punished but in any one else, no law by which punishment is inflicted can be cruel, no law deserving of reproach.

Another instance of random punishment is that of Deodands.

You are a farmer. You employ a waggon. You send your son to drive it: he slips down, is run over and killed. The King, or somebody in his name, is to have your waggon. This is the, consolation which the law of England gives you for your loss.

This idea might be improved upon. Let it be a law that when a man happens to break his neck, the people of his parish shall draw lots who shall be hanged to keep him company. The punishment would be greater, but the reason for punishment would be the same.

If instead of a waggon it had been a ship that was moving to your son's death, it would make no difference: though the ship were laden with the treasure of the Indies it would make no difference, the ship and its lading would be the King's,

The source from whence this institution flowed is pretty generally known: but it is not perhaps so generally observed that the institution is not a just consequence, even from the ideas then received. It was established, it is not easy to say how early, but however in the days of Catholicism. In those days, as soon as a man's soul had left its body, it used to go to a place called Purgatory, there to be broiled for 20,000 years. Now in this life some souls love music, others not. But in that post, life which was then to come, all souls were fond of it alike. Luther himself, who ought to know, is positive of it. Not that all music was to their taste. It was only a particular kind of music, such as priests know only how to sing. But it was not reasonable that priests should sing unless they were paid for it; for the labourer is worthy of his hire. Now when a man died thus suddenly, it was not probable that he should have made any provision by his will for paying them. Therefore it was necessary that somebody else should pay them. So far was in order. But why resort to any other fund than the man's own property? Was he the poorer for having died a violent death, than if he had died a natural one? or for dying by the effect of a thing in motion, than if he had died by a fall from a thing at rest? And if, after all, he had nothing to pay for himself, could not the parish, or the hundred, or the next abbey have paid for him?

I would not swear but the sages who invented this notable institution might think to do a spite to the thing, the waggon, the ship, or whatever it was, by making it forfeited; as the Athenians exterminated a stone that struck a man and killed him, that is, carried it out of their country and threw it into another. Many a public institution, which the lawyer admires with humble deference, has had no better ground.

The next instance of random punishment which I would give, consists in the exclusion put upon testimony.

I could wish to give the reader a precise list of the offences to which this punishment is annexed, but this I find to be impossible. Every principle delivered on this subject teems with contradiction. The enumeration which is sometimes made includes nearly every principal crime, comprehending treason, perjury, forgery, and such like crimes, theft, all crimes considered infamous, and felony. As to felony, this is spoken of as if it were a particular species of crime: the case is, that felony is a collection of crimes as heterogenous as can be conceived, and which have nothing in common between them but the accidental circumstance of being punished with the same punishment. Crimes of mere resentment, or malicious mischief, are by scores of statutes made felonies. Homicide intentional, in the heat of passion; or unintentional, by an unlucky blow, is felony.---Rape is felony.---Crimes of lewdness are felonies.---What is not felony?---The evidence of persons excommunicated is not received, the reason annexed by some has been, that these individuals not being under the influence of religion cannot be believed on their oath. By others it has been generally said, that those who converse with excommunicated persons are excommunicated with them, and consequently they cannot be admitted to receive any questions from a Court of Justice. Of this nature are the reasons frequently given for existing laws in the books of English jurisprudence.

Without longer stopping, therefore, to ascertain in what cases testimony is refused, let us proceed to examine if this is a proper punishment, that is to say, if there is any case in which because a man has committed a crime his testimony ought to be rejected.

The only reason there can be for rejecting a witness is this, that it appears more probable that after every expedient that can be put in practice to get the truth of him, the account he gives of the matter would rather mislead those who are to judge than set them right. I say mislead the judges; I do not say be a false one: for whether it be true or not, is what to the purposes of justice is a matter of indifference. The point is for them to (be enabled to) form such a notion of the fact in dispute as shall prove a true one; by what means they come at it is no matter. He would commit perjury indeed, but that is quite another evil, and an evil for which there is another and more proper remedy than that of prematurely repelling his evidence. This want of veracity, therefore, is no objection to him, unless he has the faculty of maintaining to the last such a degree of consistency and plausibility as shall enable him to conceal it.

As to want of veracity it should be considered that the greatest liar in the universe rarely swerves from truth (I mean what to him seems truth) in one instance out of a hundred. The natural bent of all mankind is to speak truth; it requires the force of some particular interest, real or imaginary, to overbalance that propensity. Some men, it is true, are made to deviate from it by very slender motives, but nobody tells a lie absolutely without a motive.

Now then, do but suppose him absolutely with out any interest to give a false account, and the most abandoned criminal that ever was upon the earth might be trusted to as safely as the man of the most consummate virtue. Where then lies the difference? In this, that the profligate man may easily be made to fancy he has such an interest in telling falsehood as shall preponderate over the interest he fancies he has in speaking truth; the easier, the more profligate he is: the man of virtue, not without difficulty; the more difficulty, the more he is confirmed in virtue.

Now a motive to speak truth, in cases where he is called upon by law to give his testimony, is what every man has, and unless he be insane must conceive himself to have; he has it from the political sanction, in the penalties which the law denounces against falsehood in such cases: he has it from the moral sanction, in the infamy annexed by men in general to such a conduct: he has it from the religious sanction, unless he be an atheist, and except in as far as dispensations or absolutions may intervene to take it of.

The interest which a man may have on the other hand to speak falsehood in such a case, may be distinguished into a natural interest, and an artificial one. What I mean by a natural interest need not be explained. I call that an artificial interest which he may derive in the way of reward, by the express act of him who has some natural interest. If you are at law for an estate, you have a natural interest in my telling any story, true or false, that may serve to establish your title. If you give me a reward for telling such a story, I have an artificial one, which is raised up in me by you.

Now whether a man has a natural interest or no in the fate of a contest, is in general pretty easy to be known; it is a question of itself: and if determined in the affirmative, the tendency of the law is, to reject a man as a witness, upon that distinct ground, and without regard to his probity or improbity.

The question is here concerning an artificial interest, the existence, or non-existence of which, does not so readily lie within proof; but the lights that are to be had, are to be drawn from such circumstances as may appear to affect the description of a man's general character. Thus much only is certain, that in proportion as a man is more or less confirmed in virtue, the less or the more likely is any artificial motive which may be presented to him, to preponderate over the motives he has to speak truth, and be effective, so as to determine him to speak falsehood.

It is here proper to be upon our guard against a vulgar error. Men of narrow experience, of hasty judgment, and of small reflection, in a word, the bulk of mankind, have in a manner but two classes in which to stow a man, in respect of merit: they know but of two characters, the good man and the bad man. If then they happen to view a man's conduct, in any instance, in a favourable light, up he goes among the good men; if in an unfavourable, down he goes among the bad men, and they fix a great gulph between the two. If their opinion, with respect to either, comes to change, as they have no intermediate stages, he is removed from his station, with the same violence as he was at first placed in it. But men of observation and cool reflection, who have had patience and sagacity to make a narrow search into human nature, learn to correct the errors of this indolent and hasty system; they know that in the scale of merit, men's characters rise one above the other, by infinite and imperceptible degrees; and, at the same time, that the highest is distant from the; lowest, by a much less space than is commonly imagined.

Those who admit the truth of these observations will see how precarious and ill-contrived a means the law takes to come at truth, by giving into the error above noticed: by making one class of men, which it will hear, and another of men, whom it will not suffer to be heard in any case, or on any account. In a word, (for I own that the argument comes to this) that while it enjoins any class of persons to be excluded, at all events, to avoid a small degree of possible inconvenience, it embraces a great degree of certain inconvenience.

It is manifest, that the smaller the number of persons is whom it guards against, in proportion to those whom it remains still exposed to danger the less is the advantage gained by it. Whom then does it guard against? a few hundreds, perhaps, in a nation. And from whom does it remain exposed to danger? all the rest of the nation. For who is it from whom it does not stand exposed, in any case, to a danger of this kind, I declare is more than I can imagine. If there be any man now living that can lay his hand upon his heart, and solemnly declare, that in no instance, trivial or important, has he ever departed from the rigid line of truth, upon the prospect of advantage, he has either more hypocrisy than I would wish to impute to any man, or more virtue than I can persuade myself to exist in any man. The only person about whom I can be sure, and who yet would not willingly yield the palm of integrity to any one that lives, nor barter any atom of it for any other honour the world has to bestow, is far, I know, from the thoughts of making any such pretensions.

There are cases in which the best man alive could scarcely be credited without danger: there are cases in abundance, in which the worst man alive might be believed with safety. Such are all those, where the circumstance of the case afford the witness no natural motive to speak falsely: and the circumstances of the parties are such as can afford him no artificial one. I am, for instance, as bad a man as, for the supposition's sake, you would choose to have me. I happen to see one man beating another, who afterwards seeks his remedy at law against the oppressor, and calls me as a witness, and the only witness. Now, it has happened, that I have been convicted of perjury, over and over again, as many times as you please: I would swear my father's life away for a penny. But the parties are, both of them, miserably poor: they neither of them have a penny to tempt me with. What then is there to induce me to give a false account of the matter? nothing. What then is the danger of admitting me? none at all. What the consequence of rejecting me? the triumph of oppression. Now, in a case like this, there is nothing singular nor improbable; a thousand such might a man figure to himself with ease.

Having proceeded thus far, I will venture to advance this position, that a man's testimony ought not to be rejected at all events, even for the crime of perjury: if not for perjury, it will follow, a fortiori, not for any other crime. I will just offer a farther consideration or two, in support of this opinion; I will then give a short sketch of the evil consequences that result from such an absolute rejection; I will thirdly offer an expedient, which, I think, would answer every good purpose of it; and lastly, I will state the different degrees of reason there may be, for extending the incapacity to the different crimes that may be proposed.

Now then, let the crime of which the witness has been convicted, be that of perjury. He has, however, no natural interest to speak false; if he has, that forms another ground of disability, which is not here in question. If then, he has an artificial interest, it is the party that must give it him. But in this case, the party must be a suborner: unless then, he stand already convicted of subornation on a former occasion, there can be no ground for repelling the perjured witness, without peremptorily attributing to another man, whose character stands unimpeached, a crime of a similar complexion: a supposition, which no rule, either of law or reason, seems to warrant.

I cannot help thinking, that these rules of peremptory incompetency would never have been laid down, had those, who first started them, gone deliberately and circumspectly to work, and carefully examined the consequences on both sides of the question. The evil consequences of the rule they seemed scarcely to have cast their eyes on. They seem to have gone to work, as if they had witnesses enough in every case to pick and choose out of; on which supposition, certainly, they would do well to discard the worst, to pick out and retain none but the best, and such as should be proof against all exception. All this was mighty well, provided there was no danger on the other side. But the danger on the other side is terrible. It is a truth, however, which I can scarce help looking upon as very obvious, and certainly it is an important one, that to mark any man out as disabled from witnessing at all events, is to grant all men a license to do to him and before him all manner of mischief whatsoever. Now, as to what may be done to him, that indeed may be taken as so much punishment of the proper kind, though it would be a strange loose and inconsiderate method of laying a man under proscription.

But as to mischief that may be done to others in his presence, or which, in any other way, others may suffer for want of his evidence,---the case of Pendoch and Mackendar (2. Wils. 18.) may serve as an example. By the statute, which is called the Statute of Frauds and Perjuries, three witnesses are necessary to a will of land. In this case, the will had three witnesses as it ought to have. Two stood unimpeached; but it was found out, that the other, once upon a time, had been convicted of petty larceny, and been whipt. This was before the attestation, how long, it does not appear. The suit was commenced five years afterwards. This man being deemed a bad witness, (and as such, not to be heard) there wanted the requisite number, and the man, in whose favour the will had been made, lost the estate. One may imagine the shock to a person, who thought he had all the security for his estate which the law could give him; one may imagine the surprise and indignation the testator, were he to arise out of his grave, must feel, at seeing his disposition vacated, by an incident which common prudence could never have prompted him to guard against, unless, by looking in a man's face, he could have told, that once in his life he had been guilty of a trifling breach of honesty, and been whipt for it.

The limits of this design will not permit me to expatiate upon this subject any further, by suggesting cases of like mischief that are liable to happen, or collecting such as are known actually to have happened. This general sketch of them being given, the intelligent reader will readily excuse me from entering into the detail.

Because a woman has been guilty of perjury, or any other offense which has rendered her testimony inadmissible, it is just that she should be punished; but is it just, is it proper, that she should be delivered over to the lust of whatever man to whom her beauty may become an object of desire? If the law were known to be, in this respect, as it is said to be, the nation would become a scene of lust, cruelty, and rapine; but it happens here, as it will sometimes happen in other instances, one mischief operates as a palliative to another: the extreme absurdity of the law is veiled by men's utter ignorance of its contents.

Let us turn back and look on the other side. What then would be the mischief of admitting the testimony of a man thus stigmatized? I see none: none at least that can for a moment stand in competition with the mischief on the other side. ``But the person so stigmatized does not deserve to be believed!'' Does he not? why am I to think so? because you say so? No; but because men in general will say so too! And will they then? Yes, surely will they. I do believe it, and therefore it is I say there is no danger. Let him be known for what he is, and a Jury will be under the strongest bias not to believe him. Their prejudice will bear strong against him; nor will any thing less than the strongest degree of probability, and the most perfect consistency in the whole narrations be sufficient to induce them to believe it. I see not what it is that should justify the extreme distrust which Judges have shown of Juries in establishing this rule: especially, as in case of a conviction of an innocent person, which is the greatest danger the case is open to, it is so entirely in the power of the Judge to save the convict. The general prejudice of mankind, as we have before observed, leads them to exaggeration in the judgment they pronounce of the general tenor of a man's character, from a single action; in particular, to spread the stain that a single act of delinquency brings upon a man s character, farther than according to reason, it ought to go. It is from having been the dupes, as I take it, of this prejudice, that even Judges, the ancient Judges, who first laid down the law upon this point, first broached this rule. It may always be expected to work, at least as strongly as it ought to work, upon Juries taken from the body of the people.

Were it then abolished, the conduct of Juries, then you think, would nearly be the same as if it subsisted? I think it probable. What advantage then would you gain by the abolition? This great one: the chance that a delinquent might have of impunity in such a case, would no longer be visible upon paper; he would no longer see a formal license given him, by the letter of the law, to commit all manner of wickedness in presence of an object circumstanced like the party in question; if a guilty person were acquitted upon that ground, it would appear as if, upon the whole, the story was not credible, and that, in fact, no such crime was committed as was charged, not that having been committed, it was suffered to go unpunished. This then is the advantage, and I think a more conclusive one cannot well be required to justify any institution.

All that prudence requires in such a case is, that the character of the witness, that is to say, the offence of which he was formerly guilty, should be known, that those who are called upon to inveigh his testimony, may be able to judge how far he is to be believed.

Suppose the party has been guilty of perjury, this crime most particularly affects his credibility.---There is a great difference to be observed in the quality of the crime when committed in self-defence, in one's own cause, and when committed on the subornation of a stranger, and in an attack upon the life of an innocent person; such distinctions are most important, and readily offer themselves to those who consult the dictates of common sense, and do not suffer their eyes to be blinded by the mist of technical jargon.

The time which has elapsed since the offense was committed is a consideration of importance.---A man in his youth, at fourteen or fifteen years of age, was led to take a false oath, and was convicted---he becomes reformed, during thirty or forty years, he maintains an unimpeachable character. His reformation is of no consequence, the record of his forgotten crime is dragged from the dust with which it had been covered; in accordance with this rule, his testimony must be rejected; upon every principle of common sense and of utility, it would have been equally admissible with any other.

In the prosecution of criminals, the testimony of those who have a manifest interest in their condemnation, is not refused, whether that interest be pecuniary, or arising from a desire of vengeance. Such testimony is, however, received with distrust and caution.---This is well;---be equally distrustful of a witness, whose previous conduct has rendered him suspected; but hear him, and examine whether the circumstances of his crime are of a nature to affect his credibility on each particular occasion.

[RP, Book IV, §7] [RP, Book IV, §9]