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said to be malum passionis, quod infligitur ob malumactionis; and therefore, in its own nature, it must be confined to the person of the criminal ; for whoever pre. tends to inflict a punishment upon an innocent person, cannot properly be said to punish: on the contrary, he deserves to be punished, because in so doing he commits a crime, or a malum uctionis ; and for that reason ought to have a malum passionis inflicted upon him. How. ever, there are many misfortunes, inconveniences, and losses, which innocent men are subjected to by the nature of things,' and may be exposed to by the laws of society, for the preservation or welfare of the society. As there are many diseases that descend from parents to children, it is a misfortune for a child to be born of parents afficted with such diseases: it is a misfortune for a child to be born of parents that are poor and indigent ; but these misfortunes are not to be called punishments, because they are, by the nature of things, inflicted upon innocent persons.
There are others, as I have said, which innocent men may be exposed to by the laws of society : such were the confinements which leprous or unclean persons were exposed to by the Jewish law; and such are those confinements which people are subjected to by our law, who are infected, or under suspicion of being infected with the plague: such, likewise, are the misfortunes which attend children who are born of slaves, in countries tvhere slavery is established : such were the incapacities of children born of plebeians, in the ancient Roman commonwealth, who could not intermarry with the patricians, nor be advanced to any of the chief posts in the government: and such are the misfortunes attend. ing children born in this country, of parents who happen to be convicted of treason; because by their attainder they are divested of every thing that belonged to them, and therefore the children are in the same state as if they had been born of poor and indigent parents. But none of these misfortunes can be said to be punishments, vor were ever called so by those who understand aoy thing of the laws of nature or nations. Vol. I.
Both the learned Grotius, and the learned Puffendorf, are clear upon this subject. The former, in treating of what he calls the communication of punishments, in order to shey that an innocent man ought not to be made to suffer for the crime of the guilty, distinguishes between that damage or loss which a man may suffer directly, and that which he may suffer consequentially. A man suffers directly, he says, when any thing is taker away from him, which properly belonged to him ; and he suffers consequentially, when he loses what he has a conditional right to, by the failure of the condition upon which he was to have it: and forfeitures he expressly mentions as a damage or loss of this last sort; because children have but a conditional right to their father's estate, that is, provided the father dies possessed of it. For this reason, that learned gentleman says, that for. feiture is no punishment upon the children, but only a damage which they suffer, not directly, but consequen. tially, by the crime of the father, which prevented the existing of that condition upon which they were to have had his estate ; and after having thus distinguished, he concludes, that no man who is perfectly innocent can be punished for the crime of any other man.
The learned Puffendorf, again, treats this subject in the same manner, and almost in the very same words. He distinguishes between a damage suffered directly and consequentially : “ The first is, (says he,) when a man is deprived of that he has already a proper right to: The second, when that condition is intercepted, withdut which he could not enjoy such a right. Thus, when the estate the parents were possessed of is for. feited, the children also feel the loss of it: but, how. ever, this is not a punishment properly, with respect to the children, because they cannot come to the in. heritance of their father's estate, unless the father preserves it for them till he dies; and therefore, the confiscation or forfeiture only
forfeiture only intercepts the condition, without which the children can have no right to the father's estate."
To the opinion of these two learned moderns, sir, I shall add the opinion of a very famous man among the ancients ; I mean Marcus Tullius Cicero ; who, in one of his letters to Brutus, approves of the forfeiture of Lepi. dus, and says, it was as just to reduce his children to a state of want and misery, as it was in the Athenians to reduce the children of Themistocles to that wretched state. To which he adds, that was an ancient and general custom in all commonwealths : from whence I think I may infer, that the forfeiture of traitors was a law which prevailed among the Romans, long before the establishment of their empire. And that this law was es. tablished among the Jews, even in king David's time, is evident from the story of Mephibosheth, and his servant Ziba ; for, from thence, we find, that the estate of Saul had been forfeited, but was restored to Mephibosheth, for his father Jonathan's sake, and was again taken from him by a new forfeiture, on a false suggestion of Ziba's.
Having thus shewn, sir, that the forfeiture of a guilty father cannot be looked on as a punishment upon the innocent children, it can no way be said to be incon. sistent with religion, especially that precept delivered to the Jews, which forbids punishing the father for the son's iniquity, or the son for the father’s. That law was certainly meant against subjecting either the one or the other directly to any loss, damage, or inconvenience, for the crime of the other, and not against that consequential damage which is brought upon the son by the forfei. ture of the father ; and, as I have shewn that forfeitures have been approved of by the most learned lawyers, both ancient and modern, and were established in the Jewish, Grecian, and Roman commonwealths, no gen. tleman can, I think, have the confidence to aver, that they were, or are, inconsistent with natural justice, or the liberties of a free people.
The next thing I am to shew, sir, is, that they are consonant to the laws of this kingdom, both ancient and modern. Here indeed, I am at some loss what gentle. men may mean by our ancient laws; and therefore, that I may not be accused of any neglect, I shall go as far back as I can. I think I may be very sure, that no man can tell what our laws were, or whether we had any, before the Romans came amongst us. If gentle men mean by our ancient laws, the laws which prevailed amongst us whilst we were subject to the Romans, then certainly, the law of forfeiture for treason was established, because it was then a part of the Roman law, If we come to the laws of the Saxons, and say, that these were the ancient laws of this kingdom, I think the point may be as positively determined in favour of forfeitures; for that the feudal customs prevailed among the Saxons, as well as among their other northern neighbours, is, in my opinion, clear to a demonstration ; and it is certain, that by the feudal law, the forfeiture of the estate was the certain consequence of any breach of fealty in the tenant or vassal. If we refer to the fragments, still remaining, of the Saxon laws that were established in this kingdom, the point will be as clear in my favour. It is very true, that from these fragments it appears, that fines, or mulcts, were the punishments inflicted upon most crimes; but still there were some that were punishable with death, or forfeiture of estate, and sometimes with both. By a law of king Ina's, it is expressly en. acted, that whosoever fights in the king's palace, shall lose his inheritance : hæreditatem perdat, are the words of the law. And, by a law of the famous king Alfred, it is enacted in these words: Si quis vitæ regis insidietur, per se, vel per ultores mercede conductos, vel servos suos, vita privetur et omnibus quæ possidet.
Thus, sir, it is evident, that forfeitures were in use among the Saxonis ; and that they have been constantly
; in use since the conquest, not only in treasons but in fe. lonies, so far as relates to goods and chattels, no map can deny; therefore they must be allowed to be conso. nant to our laws, ancient and modern ; and that they are not inconsistent with the freedom of our constitution,
experience itself must bear witness; for we have hitherto preserved our constitution entire, and I doubt much if we shall be able to do the same, should forfeitures of all kinds be abolished ; for it is certain, that nothing can be of more dangerous consequence to the liberties of a free people, than frequent civil wars. The first civil war that happened among the Romans, was that which they called the sociale bellum, or the war begun by the several people and cities in Italy, whom the Romans, that is to say, the citizens of Rome, would not admit to an equal share in the government with themselves. How long did they preserve their liberties after the commencement of this civil war? Not much above sixty years; for this war began about the year 660 after the building of their city, which was their æra ; and Augustus Cæsar, after the battle of Actium, was confirmed in the absolute government of that vast empire in the year 725, of the same æra. And even in this kingdom, a civil war has, more than once, put an end to the freedom of our constitution; for the civil war between the houses of York and Lancaster, established what I may very properly call an absolute government in the person of Henry the VIIIth ; and the civil war between Charles I. and his parliament, established an absolute government in the person of Oliver Cromwell. It is true, as our constitution is more perfect and better contrived than that of the Romans ever was, it has hitherto always recovered itself; but considering the change in the manners of our people, if it should hereafter be overturned by a civil war, I am afraid it will never recover; therefore, there is no evil we ought to guard more cautiously against than that of a civil war; which brings me to consider the end, or design of punishment, and in particu lar, of that punishment called forfeiture,
Sir, the chief end of all punishment ought to be, the general good of mankind, or of society. For this end, public punishments have been introduced ; and those crimes which bring the greatest mischiefs upon mag