In pursuit of (the means of making) compensation, the business of punishment is apt to be overlooked. When one man, the party injured, is presented with what another man, the injurer, is made to pay, men are apt to take it for granted and at first asking, would be apt to answer, that there is no punishment in the case. They imagine, but hastily and erroneously, that the only person who has suffered by the offence, is that party who is the immediate object of the injury. If then that person, by an operation of law, be made to enjoy as much as by the offence he had been made to suffer, they conclude (and justly enough were the foundation true) that everything is set to rights, and that the law has nothing more to do. The pain which the offender is made to suffer by being made to give up what the party injured is made to enjoy, they do not look upon in the light of punishment. They look upon it as a circumstance resulting, accidentally and unintentionally, out of the operation by which an indemnification is produced to the injured party, so that it would be but so much the better if that pain could be altogether spared; and it is for want of being able to save it, that it is suffered to exist. In short, so entirely is the idea of punishment lost in that of compensation, that a law which appoints the latter is not understood to appoint the former, is not looked upon as a penal law.
Punish, however, it must---a penal law in one sense of the word, it must be, if it is to have any effect at all in preventing the practice which is productive of the mischief it means to cure; and it is by punishing that it does more good than by indemnifying. For of the two ends, prevention and compensation, the former, as has been proved, is by much the most important.
This neglect, however, of the principal end of laws made in restraint of private injuries, has not been attended with all the ill consequences that might at first sight be imagined. The indemnification being made to come out of the pocket of the aggressor, has produced the punishment of course. Now, under the laws of most nations, in most instances of acknowledged injuries, indemnification has been exacted, and by that means, in most cases, it has happened that punishment has been applied. Yet not in all: because compensation has been made defeasible by contingencies; I say in most, but it has not in all: for there are two events by which in all these cases indemnification is rendered not necessary in so great a degree as it was before, and, as it may appear upon a superficial glance, not necessary at all. In effect, upon the happening of either of these two events, under most laws, and particularly under our own, the obligation of making compensation has been cancelled. At the same time compensation being the only object in view, this being taken away, punishment has of course dropped along with it. But in these cases, as I hope soon to make appear, howsoever it may stand with compensation, the demand for punishment has not been lessened by either of the events in question.
These are, 1st, the death of the injurer; 2dly, the death of the party injured.
I. The death of the injurer has been deemed to take away the occasion for indemnification. The reason that occurs is, that there is nobody to give it. Had he continued alive, he ought to have given it, doubtless; but as he is gone, who ought then? Why one person rather than another?
To answer these questions at large, we must make a distinction according to the nature of the offence. The offence is either attended with a transferable profit, a fruit transmissible to the representatives of the offender, or not. In the first case, the obligation of making compensation ought clearly to devolve on the representative on the score of punishment, if on no other. In the latter case, there would still be one use in its being made to devolve on the representative, as far as the possessions he inherits from the party deceased extend, though not so great a use as in the former case.
Where the profit of a transgression is transmissible to a representative, the obligation of restoring the amount of it ought likewise to devolve on him; if not, the punishment would not, in the case in question, be equal to the profit: in fact, there would be no punishment at all, no motive for the party under temptation to abstain from it. It may occur for the first moment (but it will soon appear to be otherwise) that neither will there in contemplation of this case be any temptation: for if the injurer thinks himself about to die, there will be an end of the profit of the injury. But this is not the case: should he be made to lose it ever so soon himself, he may transmit it to those who are dear to him, so that the pleasure of sympathy, grounded on the contemplation of their enjoyment, is a clear force that acts without control, and impels him to transgression. Besides this, the delays and uncertainty of justice add still to the force of the temptation. If he can contrive to spin out the suit so long as he lives, the whole business from beginning to end is clear gain to him.
II. Even though the profit of a transgression be not of such a nature as to be transmissible to a representative, there seems still to be a reason why the obligation of making amends ought to devolve on the representatives, as far as they have assets. Such an arrangement would be eligible, as well on account of punishment as of compensation.
On account of compensation, for the following reasons: the mischief of the transgression is a burthen that must be borne by somebody: the representative and the party injured are equally innocent in this respect, they stand upon a par; but the representative would suffer less under the same burthen than the party injured, as we shall presently perceive. From the moment when the injury was conceived, the party injured, in virtue of the known disposition of the law in his favour, entertained expectations of receiving amends. If these expectations are disappointed by a sudden and unforeseen event, like that of the delinquent's death, a shock is felt by the party injured, such as he would feel at the sudden loss of anything of which he was in possession. The eventual representative entertained no such determinate expectations. What expectation he could entertain in the life-time of his predecessor, respected only the clear surplus of his fortune; what should remain of it after the deduction of all charges that might be brought upon it by his misfortunes, his follies, or his crimes.
On account of punishment, for the following reason: the punishment of the delinquent in his own person, is a punishment which fails upon his death. The burthen thrown upon those who are dear to him, extends his punishment, as it were, beyond the grave. Their suffering, it is true, will, for the reasons above given, not be very considerable; but this is what the bulk of mankind are not apt to consider. It will be apt therefore, in general, to appear to him in the light of punishment, and will contribute to impose a restraint on him in a case in which, otherwise, there would be none. Nor will this advantage, in point of punishment, be charged with that expense, which renders punishments in alienam personam generally ineligible: for when the burthen is made to rest on the representative who has assets, there is less suffering, as we have shown, upon the whole, than if it were to rest upon any other person.
The law of England on this head is full of absurdity and caprice. The following are the instances in which (the heir is permitted to enrich himself by the wrongdoing of his ancestor) a man is permitted to enrich his heir with the profit of his crimes. [2] By the wrongful taking and withholding of any kind of moveables, while, if it had been by only withholding money due, the heir must have refunded. By the waste committed on immoveables, in which he has only a temporary interested By selling a prisoner for debt his liberty. By embezzling property entrusted to him by will: though, if he had not broken any such confidence, but had intruded himself into the management of the dead man's property without warrant, the heir must have refunded; in short, by any kind of injurious proceeding, where the compensation, instead of being left to the discretion of a Jury, is thought fit to be increased and liquidated by a positive regulation.
The death of the party injured is another event upon which the obligation of making amends is very commonly made to cease; but with full as little reason, it should seem, as in the former case. The death of the party in question is a contingency which does not at all lessen the demand there is for punishment. For compensation, indeed, the demand is not altogether so strong in this case, as in the Cornier: the person who was the immediate object of the injury, entertained a prospect of reaping, in present, the whole profit of a compensation he expected to be adjudged to him; his representative did not, during the life-time of the principal, entertain so fixed a prospect: he, however, entertained a full prospect of some compensation to be made to his principal; and he entertained a prospect of a part, at least, of that compensation devolving upon himself, subject to the contingencies to which his general expectations from the principal were exposed. This expectation is more than any one else was in a situation to entertain, so that there is a better reason why he should reap the profit of the punishment, than why any one else should.
The law of England has been more liberal in the remedies it has given to the heir of the party injured, than in those which it has given against the heir of a wrong-doer. It gives it to the heir in all cases, as it should seem, of injuries done to the property of the ancestor. It denies it however in the case of injuries to the person, be they ever so atrocious; and probably, in the case of injuries to the reputation. This omission leaves an open door to the most crying evils. Age and infirmity, which ought, if any difference be made, to receive a more signal protection from the law, than the opposite conditions of life, are exposed more particularly to oppression. The nearer a man is to his grave, the greater is the probability that he may be injured with impunity, since, if the prosecution can be staved off during his life, the remedy is gone. The remedy, by a criminal prosecution, is but an inadequate succedaneum. It extends not to injuries done to the person through negligence, nor to all injuries to the reputation: it is defeasible by the arbitrary pleasure and irresponsible act of a servant of the Crown: it operates only in the way of punishment, affording no compensation to the heir.
After so many instances where no satisfaction is exigible from the heir for transgressions, by which he profits, no one will wonder to find him standing exempt from that obligation in the case of such injuries as, being inflicted commonly, not from rapacious, but merely vindictive motives, are not commonly attended with any pecuniary profit. Such are those done to the person, or to the reputation, or in the way of mere destruction to the property. So accordingly stands the law. Though there are none of them by which the injurer may not, in a multitude of cases, draw indirectly a pecuniary profit: for instance, in the case of a rivalry in manufactures, where one man destroys the manufactory of his more successful rival.