The punishment known in practice by the name of Outlawry, consists of the following ingredients:
This is the punishment inflicted for the offense of absconding from justice in all cases, except where the punishment for the principal offense amounts to felony: in this case, a man against whom a sentence of outlawry is pronounced, is punished as if he had been convicted of the principal offense.
As the offense of absconding is a chronical offense, the punishment applied to it should be a chronical punishment, such an one as being made to cease upon the cessation of the offense, may operate only as an instrument of compulsion. All these punishments are capable of being made so; but none are so upon the face of them. None were so originally. They are by this time, however, rendered so in great measure by modern practice, which has corrected the inordinate severity of the original institution.
This punishment applies in most cases, but not in all cases: in all cases where the prosecution for the original offense was in the criminal form, that is, in other words, in all criminal suits: it applies in most, but not in all civil suits. In the same civil suit, it applies or does not apply, according as the suit happens to be commenced before one court or another. In the same suit, and that carried on in the same court, it does or does not apply according as the suit happens to have been commenced by one kind of jargon or another. All this without the least relation to the merits.
The punishment of forensic disabilities is applied to a multitude of offenses: namely, to all those which are punished either by capital felony, or praemunire, or excommunication. In felony, it is useless, because the effect of it is merged in the punishment of death; in praemunire, it is justifiable, in as far as the punishment of total and perpetual impoverishment, is an eligible mode of punishment, for of this it makes a necessary part In excommunication, it is ineligible, on account of its inequality. To make it answer in an equable manner the purpose of impoverishment, is impracticable, for want of the punishment of forfeiture, of which it can come in only as an appendage.
Taking it by itself, and laying aside what is necessary to make it answer the purpose of impoverishment, it is superfluous when added to the punishment of imprisonment.
Whatever may be the offences cognizable in the Ecclesiastical Court, either corporal punishment is enough for them without pecuniary, or it is not. If it be enough, simple outlawry in addition to it is too much; if not, it is too little. All this is upon the supposition that the delinquent is forthcoming for the purpose of undergoing imprisonment.
When a man absconds and has no property in possession, or none that is sufficient to answer the demand upon him, in this case, and in this only, the punishment of simple outlawry is expedient. Why? not because it is eligible in itself, but because it is the only one the case admits of. When a man has no visible property in his own country, and has made his escape into another, generally speaking, his own country has no hold of him. This may happen, suppose in nine instances out of ten; but in the tenth, it may happen that he may have a debt due to him, which he may want the assistance of the laws of his own country to recover. If this debt be more in value to him than what is equivalent to the punishment he would be likely to suffer for the original offense which made him fly, he will return and submit to justice. The punishment of simple outlawry in this case will answer its purpose. It is eligible, therefore, in this case, because it has some chance of compassing its end, and no other punishment has any.
To this mode of punishment, the objection of inequality applies with peculiar force. The fund out of which a man who has a fund of his own subsists, is either his labour, or his property. If he has property, it consists either in immoveables, or in moveables. If in immoveables, it is either in his own hands, or in those of other persons; if in moveables, it is either in public hands, or in private: if in private, either in his own hands, or in those of other persons.
A man who subsists by his labour, is in general scarcely at all affected by this punishment. He receives his pay, if not before he does his work, at least as soon as a small quantity of it is done.
A man whose fund of subsistence consists in immoveable property, is very little affected by this punishment, if that property is in his own hands. The utmost inconvenience it can subject him to, is the obliging him to deal for ready money. If his property is in the funds, he is not at all affected. There seems no reason to suppose that those who have the management of those funds, would refuse a man his dividend on the ground of any such disability. They would have no interest in such a refusal; and the importance of keeping public credit, would probably be a sufficient motive to keep them in this instance from departing from the general engagement.
If a man's property consists in moveable property which is ill his own hands, for instance, stock in trade, it affects him indeed, but not very deeply. The utmost it can do, is to oblige him to deal for ready money: to preclude him from selling upon credit. It does not preclude him from buying upon credit, since, though others are not amenable to him, he is to others.
It is only where a man's property consists in credits: for example, in immoveables in the hands of a tenant, in a sum due for goods sold on credit, or in money, out upon security, that it can affect him very deeply. Of such a man it may be the utter ruin.
In this case, whether a man suffers to the extreme amount, or whether he suffers at all, depends upon what? upon the moral honesty of those he happens to have to do with.
There are two circumstances therefore, on which the quantum of this mode of punishment depends: 1st, the nature of the fund from whence he draws his subsistence; 2nd, the moral honesty of the people he happens to have to do with. But neither of these circumstances is any ways connected with the degree of criminality of any offence for which a man can be thus punished. Of two men, both guilty, and that in the same degree, one may be ruined, the other not at all affected. The greater punishment is as likely to fall upon the lesser offender, as upon the greater: the lesser upon the greater offender, as upon the lesser.
Another objection applies to this mode of punishment on the score of immorality. The punishment being of a pecuniary nature, there is a profit arising out of it, which accordingly is to be disposed of in favour of somebody. And in whose favour is it disposed of? in favour of anyone, who, having contracted an engagement with the delinquent, can, for the sake of lucre, be brought to break it.
It may be said, that the engagement being by the supposition rendered void, these is no harm in its being broken. True, it is void, as far as concerns the political sanction, but it is not void by the moral. All that the law does is not to compel him to perform it; but the interests of society require, and accordingly so does the moral sanction require, that a man should be ready to perform his engagement, although the law should not compel him. If a man can be brought in this way to break his engagement, it is a sign that the power of money over him is greater than that of the moral sanction. He is therefore what is properly termed an immoral man; and it is the law that either has begotten in him that evil quality, or at beast, has fostered it.
The dispensations, therefore, of the political sanction, are, in this case, set at variance with 'those which are and ought to be those of the moral sanction. It invites men to pursue a mode of conduct which the moral sanction, in conformity to the dictates of utility, forbids.