BANISHMENT AND CONFISCATIONS.
Whosoever disturbs the public peace, or obeys not the laws, that is, the
conditions under which men bear with and defend one another, ought to be
excluded from society, that is, to be banished from it.
Banishment, it would seem, should be employed in the case of those
against whom, when accused of an atrocious crime, there is a great
probability but not a certainty of guilt; but for this purpose a statute
is required, as little arbitrary and as precise as possible, condemning
to banishment any man who shall have placed his country in the fatal
dilemma of either fearing him or of injuring him, leaving him, however,
the sacred right of proving his innocence. Stronger reasons then should
exist to justify the banishment of a native than of a foreigner, of a man
criminated for the first time than of one who has been often so situated.
But should a man who is banished and excluded for ever from the society
of which he was a member be also deprived of his property? Such a
question may be regarded from different points of view. The loss of
property is a greater punishment than banishment; there ought, therefore,
to be some cases in which, according to his crime, a man should lose
the whole, or part, or none of his property. The confiscation of the
whole will occur, when the legal sentence of banishment is of a kind to
annihilate all the ties that exist between society and its offending
member; for in such a case the citizen dies, and only the man remains;
and with regard to the political body civil death should produce the
same effect as natural death. It would seem then that the confiscated
property should pass to a man’s lawful heirs rather than to the head
of the State, since death and banishment in its extreme form are the
same with regard to the body politic. But it is not by this subtlety
that I dare to disapprove of confiscations of property. If some have
maintained that confiscations have acted as checks on acts of revenge
and on the great power of individuals, it is from neglecting to consider
that, however much good punishments may effect, they are not for that
reason always just, because to be just they must be necessary; and
an expedient injustice can be tolerated by no legislator, who wishes
to close all doors against watchful tyranny, ever ready to hold out
flattering hopes, by temporary advantages and by the prosperity of a few
persons of celebrity, in disregard of future ruin and of the tears of
numberless persons of obscurity. Confiscations place a price on the heads
of the feeble, cause the innocent to suffer the punishment of the guilty,
and make the commission of crimes a desperate necessity even for the
innocent. What sadder sight can there be than that of a family dragged
down to infamy and misery by the crimes of its head, unable to prevent
them by the submission imposed on it by the laws, even supposing such
prevention to have been within its power!