criminal is made to feel, may teach him to behave better for the future, for fear of suffering such another loss, if he has still any thing left to lose. Where many of his goods are taken from him, so as to reduce him to a low condition; he will have fewer opportunities of offending than he had whilst he had enough to maintain him in idleness. And these opportunities will be more particularly lessened, if his riches, whilst he had them, were either the principal motives to his crime, or the chief instruments that helped him or gave him the power to commit it. Since then the ends of punishing may thus be answered by deprivation of goods; if we have any right to make a criminal suffer at all for these ends, we must have the same right to make him suffer in his goods, as to make him suffer directly or immediately in his person. But the great question is, when the criminal is deprived of his goods, who has the property in them? They cannot naturally pass to his children or relations, if inheritance is not a right of the law of nature. Nay, though inheritance was supposed to be natural, or though it had, in a state of nature, been introduced or established by general consent; yet even then his children or relations could not, in virtue of such a right, claim to inherit the goods which he loses. For inheritance is not a right to claim property in such things as belonged to the ancestor, whenever his property in them ceases; it is only a right to claim property in such things as he leaves the heirs in possession of when his own property ceases by death. So that before his death, there can be no claim of inheritance upon any of his goods; and at his death there can be no claim of inheritance upon such of his goods as he does not leave them in possession of. And he certainly no more leaves them in possession of those goods, which he has been justly deprived of in his lifetime, than he does of those which he has sold, or given away.

As the heirs of the criminal have no claim to such goods, as he loses in the way of punishment; so neither has the injured person any, considered merely as the injured person. He has, indeed, a right to so much of the criminal's goods as will make him amends for the damage which he has suffered: but no reason can be given why he should have a right to more; unless some positive law has given him such a right. The ends which justify punishment, will by no means extend his claim any farther than this. The criminal, by suffering in his goods, may be discouraged or prevented from offending again: but a design to discourage or prevent him from offending again, can be no ground for that person, whom he has injured by offending once, to claim property in the goods which he is deprived of. The ends of punishment may be answered by taking the criminal's goods from him: but these ends do not require that the property, which he loses, should be vested in the person whom he has injured.

The person who punishes, whether it is the same that has been injured, or any one else, seems most likely to have, or rather to acquire a right in such goods: not because he is at the trouble of punishing; but because, when he deprives the criminal of his property in them, he has the fairest opportunity of being the first occupant. The person who undertakes to punish a criminal, has another opportunity, besides this, of acquiring a right in the criminal's goods. Most of the evils which the criminal can suffer in his person, may be estimated in money or in goods; and he probably would willingly submit to lose as much

money, or as many of his goods, as would make the evil, which he should feel by such loss, equal, or nearly equal, to the evil of some other punishment. Suppose, for instance, the punisher might imprison him, and he would readily give a sum of money rather than lose his liberty: in this case, by his own voluntary act, he might give the punisher a certain sum of money, in order to redeem himself from imprisonment; that is, he might choose to bear one sort of punishment, rather than another: and, in consideration of the punishers being willing to change the sort of punishment, he might make over his right to that sum of money, or to any other of his goods of the same value.

After a number of men have originally acquired a general property, as a collective body, in all such things as are distributed afterwards by that body amongst the particular members of it, and so become the private property of each individual, to whom they are thus distributed and assigned; we may, notwithstanding this, suppose each individual, in respect of punishment, to be still in a state of nature; that is, we may suppose the right of punishing to belong, promiscuously, to each of them. Whoever, in these circumstances, punished a criminal with loss of goods, could have no right to these goods, unless by way of commutation. If nothing has passed between the punisher and the criminal, except that the former has merely deprived the latter of his goods; such goods have then no particular owner: and if the punisher could claim them at all, he must claim them as the first occupant. But where a right of general property in the public or collective body obtains; such goods as have no particular owner, do not cease to have any owner at all; they revert to the public or collective body, and are not so in common, as that any one who pleases, may lawfully seize them for his own, and acquire property in them by such occupancy. Suppose such a collective body of men to have approached a little nearer to the forms and institutions of civil society, and to have made over their general property to some one or more particular persons: then, as all goods which have no other owner, so those amongst the rest, which a criminal is deprived of in the way of punishment, will become the property of such person or persons; that is, in the more common way of speaking, the goods of a criminal will, as a punishment for what he has done, be forfeited to him or them; when deprivation of goods is the proper punishment of his crime, and any one thinks fit to inflict that punishment.

Accessories to a XV. We have seen that justice will allow us to crime punishable. punish the person who commits a crime: but it may still be asked, whether we can, consistently with the same justice, punish any others besides him. This question relates to two sorts of persons; to such as are parties in a crime, though they are not the immediate doers of it; and to such as have neither done the criminal act, nor are any ways concerned in it.

As to the first sort of persons, those who are parties in the crime, they are plainly liable to punishment; not for the guilt of another man, but for their own guilt; not because a criminal act has been done by some one else, but because they had a share, or were accessories in what that other person has done. The several ways, by which we may

Grot. Lib. II. Cap. XXI. § I.

so far make ourselves parties in doing an injury, as to become parties, likewise, in the obligation to make satisfaction for the damages arising from that injury, have been already explained. By the same ways a man may make himself so far a party in a crime which another commits, as to be justly liable to be punished for it. They, who command a crime, who consent to it, when, without their consent, it could not have been committed, who assist the immediate actor in committing it, or who protect him after it is committed; they who are, in strict justice, obliged to forbid the crime, and do not forbid it, who are in like manner obliged to assist the sufferer, and wilfully neglect to assist him; they, who advise, or encourage, or countenance what is done; and they who ought to dissuade the crime, but do not dissuade it, or who ought to make it known, but conceal it; any of these are parties in it, or accessories to it: and if they have such a share in it, as evidences any evil disposition, they become liable to punishment.

It is, however, to be observed, that a man may be so far accessory to a crime, as to be obliged to make good the damage arising from it, without being liable to share in the punishment due to the guilt of it. Every neglect of justice, though in the slightest instances, obliges him to make reparation: because justice, even in the slightest instances, is what all mankind may claim of him. But punishment is inflicted to correct a bad disposition, or to prevent it from breaking out into future acts of injustice: and it is very possible, that through inadvertence, or by accident, a man may be the occasion of harm to others in the lower instances, without having such a bad disposition as to stand in need either of correction or restraint.

In punishing a criminal and his accessories; when they, by whose authority, or at whose instigation he committed the crime, can be found out, and are in our power; it is generally thought reasonable, that we should be more ready to mitigate or to remit his punishment than theirs. The crime is supposed to begin from them; and we are willing to hope, that unless they had commanded or instigated him to do what he has done, the fact might never have been committed. But certainly this rule will, in many cases, be a very improper one. He, who is under the strongest temptation to commit a crime, has the least guilt; and whether we consider him as an object of our mercy or not, yet in point of justice he deserves the least punishment. Now, it frequently happens, that his provocation, from whom the crime begins, is much greater than his, who carries it into execution. I may have provoked a man by some extreme ill usage, which puts him upon hiring an assassin to murder me: the guilt of the assassin, who is prevailed upon by a small reward to commit the fact, is plainly the greater of the two: for he, who can be brought so easily to commit a crime, must have a worse and a more dangerous disposition of mind, than he, who does not appear likely to have thought of committing it, if he had not been under the influence of a great provocation.

XVI. *The principles already established, concern- Those who have ing the ends and the right of punishing, will sufficiently no share in a prove that they, who are no ways concerned in a crime, crime, not puncannot, with any appearance of justice, be punished for ishable.

* Grotius, Lib. II. Cap. XXI. § IX, X, XI, XII.

it. If punishment is justifiable upon no other principle, but a design of correcting or restraining a disposition to hurt mankind; then where there is no crime to evidence such a disposition, that is, where there is no guilt, there can be no justice in inflicting punishment.

We do not, indeed, maintain, that no punishment can be justly inflicted upon a criminal, which shall, in any manner, or by any accident whatsoever, affect an innocent person. Mankind are so connected with one another, that, if this was a true principle, it would be almost impossible to punish a criminal at all: for there is scarce any punishment which can be inflicted, but what, by some accident or other, will, in its consequences, affect other persons besides him, upon whom it is inflicted. No one is so much a solitary individual, as to be, in all respects, quite detached from the rest of his species: either our interests are mixed with the interests of others, or, at least, there are some, with whom we are connected by ties of affection. The death of a parent will commonly hurt his children; both upon account of the interest which they had in his life, and upon account of the affection which they had for his person. He cannot be maimed or imprisoned without their feeling it: they lose at least that pleasure, which they enjoyed from his company or his welfare, and are, perhaps, deprived of that maintenance, which they received from his labour. Even any corporal pain, though he is the immediate sufferer, affects them: it is a pain to them that he should be hurt: and what is a disgrace to him, is, however we may reason about it, a disgrace to his family, in the opinion of the world. Where a man is not attached to others by natural affection, he has many other connections which will extend the consequences of his punishment to them. If he is in debt, and has no way of satisfying his creditors, but either by his labour, or by his going on in some gainful employment, which he had entered into, and which they, perhaps, had hazarded their money upon; his death, or his imprisonment, or his banishment, will be a loss to them. If he is a slave, his master will be a sufferer; if he is a master, his dependents will be sufferers; when any of the higher punishments are inflicted upon him. But the losses or evils which any of these innocent persons undergo, in consequence of a criminal's punishment, is not a punishment to them. They suffer, indeed; but they must look upon what they suffer as a natural misfortune, which was brought upon them, not directly by the design of those who inflict the punishment, but in consequence only of their accidental connections with the criminal, upon whom it is inflicted. All punishment may, indeed, be considered as some loss to them, who suf fer it: but then all loss is not, on the contrary, to be considered as a punishment. Whatever loss we designedly and directly bring upon a man, if we do it upon account of some crime that he has committed, it is a punishment; if we do it without any previous crime, it is an injury. Nay, even such loss as we bring upon a man in consequence of what we do, is an injury; if the act from whence this loss arises is an unlawful one. But the loss which an innocent person suffers by the punishment of a criminal, upon account of the accidental connection that there is between such person and the criminal, is not of either of these sorts. It is not directly or designedly brought upon him: nor is it the consequence of any act, which is in itself unlawful. He suffers it in

consequence only of our doing what, in respect of the criminal, we had a right to do.

What has been already said may help to clear up the question, whether a criminal may justly be deprived of his goods, since they are by this means prevented from descending to his children, notwithstanding these children have no share at all in the guilt of his crimes. This punishment is, in this respect, no more exceptionable than any other punishment would be: since, as we have seen, in almost every other sort of punishment, his children, and all others who are connected with him, must, in some degree or other, suffer with him. And upon the same principles, that we justify any other sort of punishment, we may justify this, in which the loss suffered by the children is not directly or designedly brought upon them, but only in consequence of our doing an act in itself lawful.

I am aware, however, that this explanation of the matter is open to an objection. It may be asked, whether in calling the act a lawful one, which is attended with this consequence, we do not take the point in question for granted? The loss which the children sustain, though we do not think fit to call it a punishment, may yet be an injury: as all losses are, which any innocent person suffers in consequence of our doing what we ought, in justice, not to do. And to say that our act of punishing a criminal by deprivation of goods, is in itself a lawful one, is taking it for granted that the act is lawful, notwithstanding the certain consequence of it is, that an innocent person will be hurt by it. However, this objection is not a very formidable one: for when we say that the act is in itself a lawful one, we consider it as detached from this consequence. In the first place, we may affirm, what has been proved already, that it is lawful to punish a criminal. And in the next place we may affirm, that if a criminal was a solitary individual, who had no children and no relations at all, to whom his goods would descend at his death; it would be lawful to punish him by deprivation of goods. And if the act is lawful thus far; the consequences, which are not directly designed by him who does it, but follow by the accidental connection between the criminal and his relations, are not chargeable upon him as an injury to those relations.

Children have a right to maintenance from their parents; they have a right likewise to the pleasure which they receive from the company, the safety, and the welfare of their parents. Now, there is scarce any sort of punishment, but what will, in some degree or other, affect the children, when it is inflicted upon the parent. And yet we never hear the same complaints about the injury which is done to the children, by punishing the parent in any other way, that are usually made about the punishing of him by deprivation of goods. Every one seems to be aware, in other instances, that the loss sustained by the child is accidental, and that the view of what it must suffer, by the punishment of its parent, is not sufficient to make such punishment unjust. Though, in fact, the loss which is suffered by the child in other instances, affects what may, with more propriety, be looked upon as its right, than the loss which it suffers in the instance of taking away the parent's goods. For the child has no more than an expectation of succeeding to his goods; and this expectation depends upon the condition of his keeping those goods till he dies. So that by depriving the parent of his goods,