FORFEITURES FOR FELONY. T HE debate on Mr. Forster's proposal to
abolish forfeiture of property as part of the punishment of convicted felons was in many respects a disappointing one. The House was very much too unanimous, and in consequence the prin- ciple on which the Bill rests was rather assumed than ex- plained. Indeed Mr. Hunt was the sole representative of true Tory feeling on this matter, and though he boasts the possession of "a mind cast in an antique mould," he is far too reasonable or too fearful of ridicule to play the part of an obstructive with vigour or spirit. That forfeiture is a punishment which has obtained in this country ever since the time of the Saxons certainly proves it to be a venerable injustice, but had Mr. Hunt been at all equal to his task, that is not the only argument which he would have quoted from the pages of Blackstone. He would have found there a precedent which completely establishes his case, drawn from the reports of the decisions of no meaner authority than King Nebuchad- nezzar himself. When that Royal jhrist required " the magi- cians, and the astrologers, and the socerers, and the Chaldreans" not only to interpret, but to remember his dream for him, he proposed to punish their default by cutting them in pieces and making their houses a dung- hill, a clear Scriptural authority for forfeiture in cases of felony, which invests the practice not only with the prestige of remote antiquity, but with something of the sanctity of religion. Mr. Hunt's desertion of his proper line of argument is the more to be regretted because he certainly was not happy in the illustration of the merit of the existing law which he cited from modern history. There was once, it seems, a rich man acquitted of murder who left all his property by will to the judge who tried him, and it is con- jectured that this was the fulfilment of a promise by which the culprit had bribed the judge before the trial. Supposing the story to be true, what possible bearing has it on the subject ? After anxious thought the only mode of applying the anecdote which has occurred to us is, that perhaps, if a man is only hung for murder, but does not incur forfeiture of goods, he will not care to bribe his judge. But then that tells rather in favour of the Bill, so that Mr. Hunt could not have meant that. Perhaps he will take an opportunity in Committee of giving some further explanation. However, there was in the House one other member, no Tory, indeed, but endowed with a love of dialectics, which makes him uneasy when the current of debate runs so unpleasantly in one direction. Mr. Roebuck is clearly of opinion that the punishment of forfeiture is a mischievous enactment ; 'but every one was proving that, so he by way of change proceeded to show that one of the arguments against it is unsound. People complain, said he, that it is "unjust to punish the criminal's family for a crime in which they had no share. But he would like to know what punishment inflicted upon the father did not fall upon the children, and whether there was not high authority for visitinr, the children for the crimes of their parents?" But surly the passage of Scripture to which Mr. Roebuck alludes is on the face of it not an enactment but a statement of fact. It in no way enjoins us to punish the children for their fathers' crimes ; it. merely tells us, what indeed is plain to every thinking man, that God has been pleased so to constitute the universe. As well might it be contended that because the poor are never to cease from the land human law ought to provide for a perpetuity of pauperism. There have been times when even that pro- position had its advocates.
"God cannot love, says Blunt, with tearful eyes, The wretch he starves, and piously denies. But the good bishop, with a meeker air. Admits, and leaves them, Providence's care."
But it is enough for human justice to inflict punishments the effects of which she can calculate and the equity of which she can explain. The inequality of human conditions, the mysterious chain of cause and effect, which half man- kind worships under the name of fate,—these are laws, written indeed by the Creator on the history of our race, but whose justification He has not revealed, and which man must comprehend before he presumes to apply. Forfeiture of goods is in fact a relic of the old vindictive theory of punishment. It is founded on precisely the same principle as that which made disembowelling part of the penalty of treason and which still lingers in the popular phrase "Hanging is too good for him." By the old German law the family of a traitor was exterminated, and the law by which the children's lives were spared expressly declared that this was duel° the particular bounty of the Emperor, and that the forfeiture of property was to be maintained, so that they might "languish in continual indigence, and find their punishment in living and their relief in dying." They who think that the sins of the fathers should be visited on the children will doubt- less be edified by the exemplary piety of our Teutonic kinsmen.
But forfeiture as a punishment for crime is not merely open to the fatal objection that it is unjust, it has no tendency to effect either of the ends for which punishment is inflicted. It is a punishment which can only operate as a deterrent on the minds of what are called "substantial men." But these are not the persons who commit crimes against property, unless, indeed, in the few cases in which they have indulged the habit of cupidity, until it has become uncontrollable and is therefore palliated by the weakness of this generation under the name of kleptomania. But such a tendency to theft as this is by its definition not to be checked by punishment, and crimes of violence are committed either in the heat of the moment or else under the influence of some one of those over- mastering passions before which all bonds, human or divine, will break like tow. The only exceptions to this rule which occur to us, the only crimes which rich men commit deliber- ately, and from which they mighthe deterred by the dread of leaving their families destitute, are treason and duelling. The last is, we trust, practically extinct in this country, and the former is committed commonly so very deliberately that there is not the smallest difficulty in baffling the law altogether. Mr. Smith O'Brien not only preserved his property for his family while he was under a conviction for treason, but so arranged matters that after his pardon the Court of Chancery compelled his reluctant trustees to give it him back again. It is true that the forfeiture of lands dates from the commission of the offence, but it is just as easy to convey away your property before per- petrating a premeditated crime as between the perpetra- tion and convict:on. So far as the law avoids bond fide sales, it only perpetrates a fresh injustice, for it de- prives the innocent buyer of' that for which he has paid value without returning him his purchase-money. With exquisite humour Mr. Justice Blackstone said that this injus- tice must be laid to the door not of the law, but of the criminal who was dishonest enough to sell what he knew he had for- feited. In the case of goods, on the other hand, the forfeiture dates from the conviction, and though a merely fictitious transTer is of course of no avail, for the property really is still the convict's, yet the Crown can never in fact prove the transfer to be fictitious.
As a means of reformation forfeiture is still more ineffica- cious. It in fact comes to this, that when a man has com- mitted one crime, the law takes care, by reducing him to abject poverty, that he shall have every inducement to commit another. Convict a well-to-do man of shooting with intent to murder, deprive him of his last sixpence, and then when he comes out of prison, unable to dig and ashamed to beg, what can he do but thieve ? It will doubtless smooth his road to so desirable a consummation that his wife and children, reduced to beggary, will probably be thieves already. A delicious example of the working of the great moral law of "visiting the children for the sins of their parents !" Nevertheless it is not to be regretted that Mr. Forster's Bill will be revised in Committee, or superseded by one from the Attorney-General. Simplicity is a great merit in law, but this Bill is rather too simple. It merely enacts that henceforth "no conviction of felony shall cause a forfeiture of lands or goods." Now it certainly is not desirable that a convict, whether in prison or with a ticket-of-leave, should be a man of fortune. There is reason in the argument of those who would have a conviction pro- duce civil death, and propose that the property should pass at once to the family of the criminal. But suppose that he has made a will, is the property to go to the devisee or heir- at-law, to the legatees or next of kin? This perhaps is of little importance ; but the question again arises,--what is the wealthy criminal to do when his sentence has expired ? On the whole, it seems to be sufficient that the family should enjoy the income of the convict's property during the continuance of his sentence. It is a punishment to a man to be made even for a time dependent on those who are naturally dependent on him, and if the law gave the income to the family the convict would probably get only the surplua that remained after their wants had been supplied. But whatever may be the anomaly of leaving a criminal in the possession of money, it is at least certain that the forfeiture is in most cases eluded without difficulty. Redpath. is said to be living in Australia in luxury, the law ef forfeiture notwithstanding. The name of Redpath suggests the main emendation which in some form or another Mr. Forster's Bill needs, for if Redpath has money it is unquestionably the produce of his crimes. No doubt if the forfeiture of property to the Crown were abolished those whom the criminal had injured might recover their pro- perty in a civil action; but it would, we imagine, be necessary that each of them should first convict him of the specific felony by which he inflicted the loss on them. This rule should be abrogated at least in all cases where the cri- minal has been convicted of a crime ; or, in other words, when he is convicted of having robbed A, not only should A be able to sue him, but B, C, and D, whom he has robbed also. Again, in some cases, as in that of a re- ceiver of stolen goods, you may be quite sure that the goods are stolen, but may be quite unable to say whose they are But it would be monstrous that either the convict or his family should be permitted to retain them. On the whole, we think, the Commons came to S. right conclusion. The present law is unequal, unjust, and inefficacious, and it would be better to abolish forfeiture simply, as the Attorney- General admitted, than to 'maintain it unaltered. But there are some practical difficulties about simple abolition which discussion in Committee may enable the Government to obviate. We have a specific offer from Sir Roundell Palmer to introduce a bill, and Sir Fitzroy Kelly assures us that if he had remained in office the law would have been amended long ago.
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