Of Banishment and Confiscation.
He who disturbs the public tranquillity, who does not obey
the laws, who violates the conditions on which men mutually support and defend
each other, ought to be excluded from society, that is, banished.
It seems as if banishment should be the punishment of
those who, being accused of an atrocious crime, are probably, but not
certainly, guilty. For this purpose would be required a law the least arbitrary
and the most precise possible; which should condemn to banishment those who
have reduced the community to the fatal alternative either of fearing or
punishing them unjustly, still, however, leaving them the sacred right of
proving their innocence. The reasons ought to be stronger for banishing a
citizen than a stranger, and for the first accusation than for one who hath
been often accused.
Should the person who is excluded for ever from society be
deprived of his property? This question may be considered in different lights.
The confiscation of effects, added to banishment is a greater punishment than
banishment alone; there ought then to be some cases, in which, according to the
crime, either the whole fortune should be confiscated, or part only, or none at
all. The whole should be forfeited, when the law which ordains banishment
declares, at the same time, that all connections or relations between the
society and the criminal are annihilated. In this case the citizen dies; the
man only remains, and, with respect to a political body, the death of the
citizen should have the same consequences with the death of the
man . It seems to follow then, that in this case, the effects of the
criminal should devolve to his lawful heirs. But it is not on account of this
refinement that I disapprove of confiscations. If some have insisted, that they
were a restraint to vengeance and the violence of particulars, they have not
reflected, that, though punishments be productive of good, they are not, on
that account, more just; to be just, they must be necessary. Even an useful
injustice can never be allowed by a legislator, who means to guard against
watchful tyranny, which, under the flattering pretext of momentary advantages,
would establish permanent principles of destruction, and, to procure the ease
of a few in a high station, would draw tears from thousands of the poor.
The law which ordains confiscations sets a price on the
head of the subject, with the guilty punishes the innocent, and, by reducing
them to indigence and despair, tempts them to become criminal. Can there be a
more melancholy spectacle than a whole family overwhelmed with infamy and
misery from the crime of their chief? a crime, which, if it had been possible,
they were restrained from preventing, by that submission which the laws
themselves have ordained.
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