« السابقةمتابعة »
dare not enter.
Next follows a chapter "Sur les Déchéances affectant la Condition," On those penalties or forfeitures, which diminish the rights, privileges, or pleasures attached to certain relations or conditions in life.
Then we come to " Déchéance de Protection legale," Outlawry as it is called in England. An anecdote preserved by Selden in his Table Talk, shows how this punishment may operate in extraordinary cases. For instance, how a king of Spain was outlawed by an English merchant, and brought at last to pay his just debt.
"An English merchant had a demand against the king of Spain. The king would not pay his debt. Selden, who was the merchant's lawyer, advised him to proceed against this foreign monarch by an action of outlawry. Writ after writ was despatched to the sheriff, ordering him to seize His Majesty of Spain, and to bring him bodily before the Judges at Westminster. Of course the answer to the writ was in due form, that His Majesty was not to be found. After certain other customary proclamations, the said king still not being to be found, was declared an outlaw; and in due form it was pronounced that His Majesty of Spain had a wolf's head, and that any persons whatsoever might seize him and drag him to prison. It is possible, that notwithstanding the caput lupinum, the king might not have yielded; but luckily, His Majesty had various demands to make upon certain English merchants; and while the writ of outlawry subsisted, he had no access to the English courts of law. Upon this consideration, His Majesty's ambassador, Gondomar, submitted in his name, and paid the debt. This done, the wolf's head was taken off, and the king of Spain's own head was restored to its place.'
But after all, the profit, pleasure, and honour, of outlawing a king cannot occur every day; and without being dazzled by this glorious victory over His Majesty of Spain, the philosophic legislator must examine this punishment of outlawry by his constant rule-utility. By comparing and balancing its advantages and disadvantages, he will determine how far it is useful to society. In former times, it was difficult to get at the person of an offender, but it appears now to be unnecesssry; there are easier and more proportionate means of reaching the delinquent, and at the same time of avoiding all the objections to which this punishment is liable, on account of its inequality, and the encouragement it indirectly gives to the breach of good faith, honour, and honesty.
The fourth book of this work treats "Des Peines déplacées," On misplaced punishments,-punishments which fall upon the innocent instead of upon the guilty; or by which the innocent suffer as well as the guilty. From the nature of civil responsibility, and the circumstances of society which connect each person with others, the family, friends and connections of every individual are involved in some measure in whatever concerns him. They may be innocent while he is guilty, but his punishment must more
or less affect them. This is unavoidable, and in some respects advantageous, as it operates as a powerful motive to restrain from the commission of certain offences; and in some cases it may increase the vigilance of those who are responsible for prisoners, and who in public or private functions are charged with the care, guardianship, or custody of others. It is, however, necessary to separate our ideas of the advantageous and necessary, from the unnecessary and injurious application of this sort of punishment. This is done with great care and ability.
On Vicarious Punishments, where the culprit remains absolutely unpunished, and the punishment falls upon a person who had no share whatever in the guilt, our author is justly severe; and here he lets loose his keen and happy talent for irony.
"Under the reign of James I. there flourished in England an illustrious philosophical knight, now almost forgotten, Sir Kenelm Digby; a man of birth, a man of learning, a profound adept in medical science. Having observed that the dressing of wounds is a painful operation, this benefactor of the human race invented a sympathetic powder of marvellous efficacy. If a few drops of the blood which flowed from the wound were sent to him in a phial bottle, that was enough; he mixed this blood with his sympathetic powder,—the patient's wound immediately closed of itself, and there was a radical cure. The presence of the patient was by no means necessary to Sir Kenelm. While the powder was acting on the blood of the wounded man, he might himself be at the antipodes. How unfortunate for our armies that this secret should be forgotten! The inventor of the sympathetic powder is not to blame for this; since he recorded the receipt for its composition, and the mode of its application in his Work, where they may be found by the curious reader.What sympathetic powder is to the medical art, vicarious punishment is to the art of legislation. I was going to reason on this subject, but to what purpose? The simple statement of the fact, that one man is punished for the fault of another, must, on the rational mind, have a stronger effect than any that could be produced by all the arguments of logic, or all the colours of rhetoric."
Confiscation of the property of those who commit suicide is one of the examples of vicarious punishment. The supposition that affection for his family would have power to restrain in the moment of despair the arm of the suicide, is, by the act he commits, proved at least in his case to be false.
"We see that disgust against life has prevailed over every other consideration. His family deprived of their parent, their head-and this is the moment that the law takes to reduce them to indigence, and to expose them to shame."
The suicide cannot feel the stake that is driven through his corpse; the silent dead cannot be provoked by the "posthumous
infamy" of an ignominious burial. But the disgrace is fixed upon his family, the shame is felt by the survivors. This punishing the innocent family cannot be vindicated with any appearance of justice, except on the plea of example. It may be said that the example of their sufferings will deter others from suicide. And it may be added, in extenuation of the apparent cruelty of this law, that
"It is seldom executed, that the coroner's inquest eludes it, by declaring the suicide to have been out of his senses, and that the king has it always in his power to restore to the widow and orphans their inheritance. But why preserve in a national code of laws, a law, which it is so often necessary to elude? And by what means is it eluded ? * **. The remedy for all these violent laws is in perjury. So then, perjury becomes a panacea, and the law sets humanity in opposition to religion ** *****. In all cases,
where punishment is denounced against the family of a delinquent, he is in fact aimed at, and it is taken for granted that the punishment will operate upon him. But is this principle good, and is it useful? To ask whether a pain arising from sympathy acts with as much force as a direct pain, is in other words to ask whether the love we bear to others is equal to the love we feel for ourselves. If self-love be the strongest, it follows, that recourse should not be had to the weaker principle, to the reflected pains of sympathy, till all that human nature can suffer by direct punishment has been exhausted."
To misplaced punishments there are principally these objections: That in some cases the punishment may be null, as where the culprit has no wife or family: then a direct punishment must be inflicted on such men: but if there be a proper direct punishment for them, why should not it be applied in all cases?
After having made these general objections to the whole class of vicarious and transitive punishments, our author, with a degree of judicious care which gives us confidence in him as a practical guide, points out in what cases exceptions should be made:-for example, in case of treason or rebellion, where confiscation of the property of the traitor or rebel must be considered as a defensive measure on the part of the state, as disarming the enemy, as necessary to deprive the criminal of the means of doing future injury. But as this punishment extends to his family, who may not have been his accomplices, their guilt should not be taken for granted; they should not be condemned without proof. Bentham wishes that there should be an act respecting property similar to the Habeas Corpus with regard to the person: an act, which should empower the sovereign, in troublesome times, to seize the possessions of suspected individuals connected by relationship with a rebel. This would be a real security, and a most advantageous measure in criical circumstances. But that which is proper in time of war is unnecessary,
unnecessary, and therefore unfit, in peaceable times. As soon as the danger is past, every person, whose guilt has not been proved, is presumed to be innocent; and to such all their confiscated property should be restored.
There is another class of misplaced punishments, which our author calls fortuitous, where the punishment of the law falls at hazard, and may chance to fall not only upon an innocent person, but on one who has no manner of connexion with the culprit, and may not only be a stranger to him, but ignorant even of his offence. Three examples are given from our English law :-The depriving a witness of his right to give evidence in a court of justice; Deodands; and that species of confiscation of freehold property, which is the consequence of the possessor of the freehold being convicted of certain crimes.
"A man commits a secret murder; he sells his property to you-Twenty years afterwards his crime is discovered-he is prosecuted, convicted, condemned, and his land is forfeit to the king. In the meantime you may have sold, conveyed away, mortgaged it; it may have passed through fifty hands, —that makes no difference. If it had been your wife whom the murderer had killed, it would come to the same thing; you would have lost your wife by his crime, and your fortune by his punishment."
Then as to deodands.
"You are, suppose, a farmer-you employ your son to drive your cart-by accident, he falls out of the cart, the wheels go over his body and he is killed. The king or some other person in his name is now to have your cart. This is the only consolation which the law of England affords you for the loss of your son."
The utility and expediency of depriving persons guilty of certain offences, of the right to give evidence in a court of justice, is next examined. This discussion is admirably conducted, and may be of great practical utility. The arguments are new, and strong, founded upon an intimate knowledge of human nature, an enlarged philosophical view of law and justice, and a thorough practical acquaintance with the business of life. We regret that our limits will not permit us to lay the whole of the argument before our readers; we cannot in conscience garble it. We may, however, mention a fact, which is quoted as a proof and example of the manner in which the innocent suffer by this punishment, instead of the guilty.
"The case of Pendoch and Machender may shew the hurtful effects of this part of English law. The attestation of three witnesses is necessary for a will, which disposes of landed property. Two witnesses to the will in ques
tion were unimpeacheable. But it was discovered, that the third had been convicted of petty larceny, and had been whipped. This happened before he signed his name to the will, but how long before does not appear. The lawsuit was commenced five years afterwards. The man being inadmissible as a witness
a witness, the number of witnesses required for the will was insufficient, and he in whose favour the will had been made lost the estate."
We pass over a chapter of Excommunication, that weapon of the spiritual court, which "like the sword of Hudibras hews giants in twain, and spits a lark." Excommunication is here considered only as a temporal punishment as it exists in the English law; but the editor is aware the subject is no longer interesting, because these old ecclesiastical arms grow more and more rusty every day from disuse. It is necessary, however, to advert to the existence of such statutes, in order to obtain their formal abolition. Nor is this a point of small importance. We must recollect what is said on the subject of dormant laws by one, who, though he has been accused of being "too fond of the right to pursue the expedient," was certainly no theoretic reformer, but a steady friend to political order and to the powers that be.
"A penal law not ordinarily put in execution (says Burke) seems to be a very absurd and a very dangerous thing. For if its principle be right, if the object of its prohibitions and penalties be a real evil, then you do in effect permit that very evil, which not only the reason of the thing, but your very law declares ought not to be permitted: and thus it reflects exceedingly on the wisdom, and consequently derogates not a little from the authority, of a legislature, who can at once forbid and suffer, and in the same breath promulgate penalty and indemnity to the same persons, and for the very same actions. But if the object of the law be no moral or political evil, then you ought not to hold even a terror to those whom you ought certainly not to punish : for if it is not right to hurt, it is neither right nor wise to menace. Such laws therefore as must be defective either in justice, or wisdom, or both, so they cannot exist without a considerable degree of danger. Take them which way you will, they are prest with ugly alternatives."
After analysing complex punishments—those which are composed of various undefined and variable portions of pain or penalty-the editor, who has it in his power to consider our English laws and law terms without the reverential prepossessions of an Englishman, indulges his wit at the expense of some of our prescriptive absurdities, which continue to be law because they have subsisted time out of mind, and the propriety or intelligibility of whose uncouth names we never think even of questioning-benefit of clergy, and felony with or without benefit of clergy. He observes that—
"Felony is a word of which the sense appears to have undergone several revolutions. Some etymologists, to shew that they understood Greek, derived it from the Greek. If they had understood Arabic, they would not have failed to find for it an Arabic origin. Sir Edward Coke, who knew nothing of Greek, but who knew a little Latin, and who never lost any opportunity of displaying that little-makes the word felony come from fel (fiel) gall. With as much probability he might have insisted upon its coming from felis a cat, a trea