CHAPTER XVII.

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!

Crimes and Punishments Including a New Translation of Beccaria's 'Dei Delitti e delle Pene' · 第 17 / 42 章