The Rationale of Punishment

Book II

Of Corporal Punishments

Chapter VIII


Quasi Imprisonment consists in the confinement of an individual to the district in which his ordinary place of residence is situated.

Relegation consists in the banishment of an individual from the district in which his ordinary place of residence is situated, and his confinement to some other district of the state.

Banishment consists in the expulsion of a man from the country in which he has usually resided, and the prohibition of his return to it.

These three species of punishment may be either temporary or perpetual.

Relegation and banishment are punishments unknown to the English law. Transportation, as we shall presently have occasion to observe, is in its nature totally different. The exclusion of Papists from a certain district about the court is to be considered rather as a measure of precaution than of punishment.

It is true, that the condition of persons living within the rules of a prison corresponds pretty accurately with the idea of territorial confinement But this kind of territorial confinement is not inflicted in a direct way as a punishment. The punishment inflicted by the law is that of imprisonment, which the prisoner is allowed to commute upon paying for it. A man is not committed to the rules: he is committed to the prison, and upon paying what the jailor chooses, or is permitted to demand, he has the liberty of the rules; that is, of being in any part of a certain district round about the jail.

The several inhabitable districts which are privileged from arrest, may be considered as scenes of territorial confinement with respect to offenders who resort to them to escape being arrested, and sent to prison. A man in such cases voluntarily changes the severer species of restraint into a milder.

In France, instances of relegation were not unfrequent. Under the old regime, a man was ordered to confine himself to his estate, or to quit his estate and go and live at another place. A punishment, however, of this sort, almost always fell upon a man of rank, and generally was rather an arbitrary expression of the personal displeasure of the sovereign than a regular punishment inflicted in the ordinary course of justice. They person on whom it fell was commonly a disgraced minister, or a member of parliament. It has repeatedly happened that a whole parliament has been relegated for refusing to register a particular edict. In these cases, however, it was often employed, not so much as a punishment, as a means of prevention---to prevent what were called intrigues. The exercise of such an act of authority was a symptom of apprehension and weakness on the part of the minister.

When a man is banished from all the dominion of his own state, he has either the whole world besides left for him to range in, or he is confined to a particular part of it. In the first case it may be said to be indefinite, with respect to the locus ad quem, in the other definite.

It might seem at first sight as if the defining the locus ad quem in banishment would be an operation nugatory and impracticable. For banishment is one of those punishments that are to be carried into effect, if at all, only by the terror of ulterior punishment. Now to be liable to ulterior punishment at the hands of his own state, a man must be still in the power of that state; which, by the supposition, it would appear as if he could not be. There are three cases, however, in which he may be so still.---

  1. Where the banishment is only temporary.---
  2. Where, though his person is out of the dominions of his own state, his property, or some other possession of his, is still within its power.---
  3. Where the foreign state to which he is exiled is disposed on any account to co-operate with his own, and either to punish, or give up to punishment, such persons as the latter shall deem delinquents.

The inconveniences of territorial confinement, whether by relegation or banishment, are for the most part of the same description as those of simple imprisonment; they are apt in some respects to be greater, in others less severe than simple imprisonment.

Territorial confinement is, however, susceptible of such infinite diversity, arising from the nature of the place--the extent of the district---the circumstances of the delinquent---that nothing like uniformity can be met with, and scarce any proposition can be laid down respecting it, that shall be generally true.

In case of relegation, the liberty of beholding the beauties of nature and of the arts, of enjoying the company of one's friends and relations, of serving them and advancing one's own fortune, is liable to be more or less abridged.

The liberty of exercising any public power, and of taking journies for the sake of health or of pleasure, are subject to be entirely taken away.

The liberty of carrying on business for a livelihood will be subject to be more or less abridged, according to its nature; and in respect of some particular species of business or trade, the opportunity of exercising it will be subject to be entirely taken away.

In respect to banishment, the inconveniences are liable to vary to such a degree, both in quality and species, that nothing can be predicated of this mode of punishment that shall be applicable to all cases.

The sort of evils with which it will be found to be most generally accompanied, may be arranged under the following heads:---

The quantity of suffering, incident to banishment, and, in some cases, to relegation, will depend upon the individual's acquaintance, or want of acquaintance, faith foreign languages. For this purpose it ought to he borne in mind that in every country the great majority of the people know no other language than their own. A great deal will depend upon the language a man speaks. A German, or an Italian, merely by being banished his own state, would suffer nothing in this respect, because in other states he will find the bulk of the people speaking precisely the same language. Next to a German or an Italian, a Frenchman would be least exposed to suffer, on account of the popularity of the French language in other European nations. An Englishman (except in America) a Swede, a Dane, and a Russian, would find themselves worse off in this respect than inhabitants of other European countries.

A man being among people with whose language he is unacquainted, is liable to be exposed to the most serious evils. A difficulty in conversation imports a difficulty in making known all one's wants; in taking the necessary steps for procuring all sorts of pleasures, of warding off all sorts of pains. Though so much of the rudiments of a language should be acquired as may be sufficient for the common purposes of life, a man rarely acquires it in such perfection as to enable him to enjoy, unembarrassed, the pleasure of conversation; he will feel himself condemned to a perpetual state of inferiority, which must necessarily interfere with, and obstruct his engaging in any profitable employment.

To some people, banishment may be rendered in the highest degree irksome by the manners and customs of the people among whom the individual is cast. The words manners and customs are here employed in their greatest latitude, and are considered as comprising every circumstance upon which a state of comfortable existence depends. The principal objects to which they refer are diet, clothing, lodging, diversions, and everything depending on difference of government and religion;---which last has, among the lower classes at least no inconsiderable influence upon the sympathies and antipathies of persons in general.

Throughout Europe, especially among persons in the higher ranks of life, a certain degree of conformity in manners and customs prevails: but a Gentoo, banished from his own country, would be rendered extremely wretched, especially on the score of religion.

Change of climate is another circumstance of importance; the change may be for the better but the bulk of mankind, from the effects of long habit, with difficulty accustom themselves to a climate different from that of their native country; the complaints of expatriated persons usually turn upon the injuries their health sustains from this cause.

With respect to all these several evils which are thus liable to arise out of the punishment of banishment, no one of them is certain to have place; they may or may not exist; in respect of severity, they are liable to unlimited variation, and it may even happen that the good may preponderate over the evil.

In point of frugality, it seems as if these several punishments were all of them more eligible than imprisonment, at least than the system of imprisonment as at present managed; and that quasi-imprisonment and relegation are more frugal than banishment.

Under imprisonment, a man must at all events be maintained. Simple imprisonment adds nothing to the facility which any man has of maintaining himself by his labour. It takes from that facility in many cases. By imprisonment some people avid always be altogether debarred from maintaining themselves. These must be maintained at the expense of the public. An imprisoned man, therefore, is, on an average, a burthen. His value to the state is negative. A man at liberty is, at an average, a profit. His value to the state is positive; for each man, at an average, must produce more than he consumes, else there would be no common stock. A banished man is neither a burthen nor a profit. His value to the state is O. It is greater, therefore, than that of an imprisoned man.

The value of a man under quasi-imprisonment and relegation, may, it should seem, be taken as equivalent or not in any assignable degree, less than that of a man at large. In the only instances in which these modes of punishment occur in England, the sufferer, instead of receiving anything from the public, pays.

In point of certainty, they have none of them anything to distinguish them from other punishments.

In point of equality, they are all of them deficient, but especially the two latter, and most of all the last.

To be confined to within the circuit of a small town can scarcely but be a punishment in some degree to almost all, though to some more, to others less. To live out of one's own province, or out of one's own country, is a very severe punishment to many; but to many it is none at all.

It is impossible to state with any accuracy the difference in this respect between relegation and banishment. In one point of view it should seem as if banishment were the more penal. For the difference in point of laws, language, climate and customs, between one's own province and another province of one's own state, is upon an average not likely to be so great as between one's own province and a foreign state. In nations, however, that have colonies, it will generally happen that there are provinces more dissimilar to one another upon the whole in those respects than some of those provinces may be to other provinces of neighbouring nations. How small a change, for instance, would an Englishman find in crossing from Dover to Dunkirk, and how great a change in going from the first of those places to the East or West Indies?

In point of variability, except in respect of time, no punishment of the chronical kind can be more ineligible than these. But in point of intensity, although the degrees of suffering they are liable to produce in different persons are so numerous, yet they are not by any means subject to the regulation of the magistrate. It is not in his power to fix the quantity of punishment upon the whole to anything near the mark he may pitch upon in his own mind.

In point of exemplarity they all yield to every other mode of punishment, and banishment to the other two. As to banishment, what little exemplarity it possesses, it possesses upon the face of the description. The descriptions of orators and poets have rendered it in some degree formidable upon paper. On the score of execution, it is the essential character of it to have none at all. Removed out of the observation of his countrymen, his sufferings, were they ever so great, can afford no example to his countrymen. This is the lowest degree of inexemplarity a punishment can possess, when even the person of the sufferer is out of the reach of observation. The two others are upon a footing with pecuniary punishment: in which the person of the sufferer is under observation, and occasionally perhaps his sufferings; but there is no circumstance to point out the derivation of the latter from the punishment that produced them. They are inferior to imprisonment: because there the main instrument of punishment, the prison, is continually before his eyes. To quasi-imprisonment and relegation there belongs no such instrument---the punishment as we have observed, being produced in the first instance not by any material but merely by moral means.[6]

On the score of subserviency to reformation there seems to be a considerable difference among these three punishments. Quasi imprisonment is apt to be disserviceable in this view: relegation and banishment rather serviceable than otherwise, more especially the latter.

1. Quasi imprisonment is apt to be disserviceable. The reasons have been already given under the head of Imprisonment. The property which we mentioned as being incident to imprisonment, I mean of corrupting the morals of the prisoners by the accumulating, if one may so say, of the peccant matter, is incident to quasi imprisonment only in a somewhat less degree. Under the former they can have no other company than that of each other: under the latter there may be room for some admixture of persons of repute. Under the former they are forced into the company of each other: under the latter they may choose to be alone.

2. Relegation is apt to be rather serviceable than otherwise: as in solitary imprisonment, if the delinquent has formed any profligate connections, it separates him from them, and does not, like simple imprisonment, lead him to form new ones of the same stamp. Turned adrift among strangers he cannot expect all at once to meet with a set of companions prepared to join with him in any scheme of wickedness. Should he make advances and be repulsed, he exposes himself to their honest indignation, perhaps to the censure of the law. Should the company he happens to fall in with be persons as profligate as himself, it would be some time before he could establish himself sufficiently in their confidence.

If he continues to make war upon mankind it must be with his own single strength. He may find it a easier to betake himself to charity or to honest labour. He is separated not only from the objects which used to supply him with the means to commit crimes, but from those which used to furnish him with the motives. The company he meets with in the new scene he enters upon will either be honest, or at least, for aught he can know to the contrary, will for some time seem to be so. In the meantime the disapprobation he may hear them express for habits resembling those which subjected him to the punishment he is undergoing, may cooperate with that punishment, and contribute to the exciting in him that salutary aversion to those habits which is styled repentance.

3. In this respect banishment is apt to be rather more serviceable than relegation. If the delinquent be still of that age at which new habits of life are easily acquired, and is not insensible to the advantages of a good reputation, his exile, if the character in which he appears is not known, will be the more likely to contribute to his reformation, from his finding himself at a distance from those who were witnesses of his infamy, and in a country in which his endeavours to obtain an honest livelihood, will not be liable to be obstructed by finding himself an object of general suspicion. But even though he were to carry with him to the place of his banishment his original vicious propensities, he would not find the same facilities for giving effect to them, especially if the language of the country were different from his own. The laws also of the foreign country being new to him, may on that account strike him with greater terror than the laws of his own country, which he had perhaps been accustomed to evade. And even in case of meeting with success in any scheme of plunder, the want of established connections for the disposing of it would render the benefit derivable from it extremely precarious. The consideration of all these difficulties would tend to induce him to resort to honest labour as the only sure means of obtaining a livelihood.

But, taking all the above sources of uncertainty into consideration, it will be found that the cases are very few in which banishment can be resorted to as an eligible mode of punishment. In what are called state offenses it may occasionally be employed with advantage, in order to separate the delinquent from his connections, and to remove him from the scene of his factious intrigues. In this case, however, it would be well to leave him the hope of returning as a stimulus to good conduct during his banishment.

[RP, Book II, Chapter VII] [RP, Book II, Chapter IX]