The Rationale of Punishment

Book VI

Miscellaneous Topics

Chapter III


The obligation of finding sureties for good conduct is an expedient, the utility of which appears more problematical in proportion as it is examined more nearly. A condition which is essential to it is, that there be an ulterior punishment destined to replace this obligation, in case its fulfillment is found impossible. This subsidiary punishment is ordinarily imprisonment,---this imprisonment is ordinarily indefinite as to its duration: it may be perpetual, and it is natural that it should be so. Does the accused find himself without friends ready to risk their security upon his good conduct? Imprisonment, and the ignominy that accompanies it, are means little proper for enabling him to find friends so devoted.

Suppose that he finds them; what happens then? To a properly seated punishment, a vicarious punishment is added, a punishment to be borne by the innocent for the guilty. In the nature of things, any punishment might be equally well enjoyed for this purpose. By custom, pecuniary punishment only is employed in the first instance, which, however, changes into imprisonment, in case of insolvability, according to a general rule. It is not, however, natural, that a man, especially a man who, by the supposition, has given proofs of misconduct, should find friends who will expose themselves to be punished for actions over which they have no power, unless he have wherewith to indemnify them for bearing this pecuniary punishment. Does he find them in this case? Then this expedient is useless; it would have been quite as well to have fixed the amount upon him directly. In order that this expedient may have an efficacy of its own, it will be necessary to limit its use to the case in which the incapacity of the accused to furnish this indemnity is known. Does he, after this, find any persons sufficiently generous thus to expose themselves for him? It is, without doubt, something gained in point of security, but it is a security very dearly bought. In all other cases, this expedient resolves itself into a question of account

The support which the law receives from this expedient, springs from two sources: it operates as an additional punishment, whereby the will of the accused is influenced; this punishment, consisting in the remorse which a generous mind would feel in seeing friends, who had devoted themselves for him, plunged into misfortune by his ingratitude. It is also an expedient whereby he is attacked upon the side of power: his sureties become guards, whom the danger to which they as exposed induces to watch over his conduct.

But will he, whom the fear of punishment to he inflicted upon himself has been found insufficient to restrain, be restrained by the fear of a less punishment to be inflicted upon another? Those passions which have stifled the voice of prudence, will they obey those of generosity and gratitude? they may obey it, but that they will not obey it is, I think, most natural; but if this is so, it is a very costly expedient. In the majority of cases, instead of insuring the good of prevention, it will produce the evil of punishment---of punishment borne by the innocent.

Whilst, as to this guard, it is a security much more verbal than real---it would be a very weak security, even if the individuals were his companions, and lived under the same roof with him at all times. But it is not among such as these that sureties are selected: they are, under the English law, required to be householders, having separate establishments. Is it then possible, that the passion which, by the supposition, had broken through the united restraints of prudence, gratitude, and honour, should be restrained by so loose a bard. Besides this, is it natural that the extremes of confidence and mistrust should be united in the same person.

The bitterness of this punishment, to which the innocent are made to expose themselves, is not taken away by calling the exposure voluntary. This willingness is owing only to the constraint which the consideration of his friend being sent, or about to be sent, to prison for life, brings with it. It is a willingness produced by torture.

In conclusion, suretyship is a resource which ought not to be resorted to without very evident necessity, if it were unattended with any other inconvenience than this, of exposing the virtue of individuals to these combats, which, in a moment of weakness, may give birth to a remorse, which shall end only with life.

This expedient is much employed under the English law; but custom has caused it to exist only in connexion with judicial commination. A certain fine is determined on, the accused is made to say, I consent to the payment of this fine, if I commit a certain offense. One or more sureties are made each to say, I consent on the same condition to owe the same, or a part of the same sum. In this manner, as if an inevitable punishment required an extorted consent to its infliction, the accused himself is made to contract an engagement, which, if it is not always ridiculous, it is that it is sometimes unjust. Implying a claim upon his property, it serves to rob his creditors of their just rights to payment of debts contracted between the period of the engagement and the contracting of the debt.

Of this ill-contrived compound mischief, what are the effects in practice? very commonly, none. This formality is complied with, as so many others are complied with, without thinking of what it means, partly from duty, and partly from habit. Sometimes it may be useful, because it always includes admonition, and sometimes threatening, according to the proportion between the fine threatened, and the punishment which would have lead place without it; sometimes for want of sureties it may be believed that the accused himself may go to prison; sometimes, after having found them, it may equally be believed that they may incur the fine, and that they pay it, or go to prison, with or without him. Do these misfortunes frequently happen? I know not. How can I know? This is one of those thousand things on which everybody ought to be instructed, and of which no one can find an opportunity of learning the truth.

[RP, Book VI, Chapter II] [RP, Book VI, Chapter IV, §1]