The Rationale of Punishment

Book V

Of Complex Punishments

Chapter VI

EXCOMMUNICATION

Various and manifold are the evils which the punishment of excommunication inflicts, or proposes to inflict: various are the sources from whence they flow. It does not confine itself to the political sanction: it calls in, or makes as if it would call in, the two others to its assistance.

Of Excommunication, there are two species, or degrees: the greater and the lesser. The greater contains all that the lesser does, and something more. I will first then give an account of those that are contained in the lesser, and then take notice of those that are peculiar to the other. Those contained in the lesser are as follows:---

• I. Imprisonment, the time unlimited, depending on the good pleasure of the Judge: the severity of it is determined by the circumstance of its being in the Common Jail.
• II. Penance, as a condition to the termination of the other punishment. By penance is meant, a corporal punishment of the ignominious kind. The particular manner of inflicting it shall be considered hereafter.
• III. In lieu of the penance, commutation money. The quantum of it is not limited in a direct manner, but is in an indirect manner; it cannot be more than a man chooses to give, in order to avoid the corporal penance.

These two last are accidental ingredients in this complex mass of punishment. Their infliction or omission depends, in some measure, upon the will of the prosecutor. Those which follow, are inseparable.

• IV. Disability to sue, either in a court of law or equity. This is a punishment of a pecuniary nature, contingent in its nature, and uncertain as to time.
• V. Disability of acting as an Advocate [1], or as an Attorney, or Procurator, for another [2]: that is, I suppose, in the Ecclesiastical Courts, and not in any other. This is a punishment of the class of those that affect a man's condition; in the present instance, it affects a man chiefly on a pecuniary account.
• VI. Disability of acting as a Juryman.[3]
• VII. Disability of being presented to an Ecclesiastical benefice[4]: of this, the same account may be given as of the last disability but one.
• VIII. Disability of bringing a suit, or action, as an executor.[5] This is a punishment in alienam personam affecting those who have a beneficial interest under the will.
• IX. Incapacity of being constituted or continued an administrator, or at least, danger of being subjected to that disability.
• X. Disability of being a witness. This, likewise, is another punishment in alienam personam, affecting those persons to whom this evidence, if given, would be beneficial in respect of their lives, fortunes, liberties, and every other possession that is in the protection of the law.
• XI. The being looked upon as a heathen and a publican.[6] This, I suppose, is meant as a sort of infamy.
• XII. Exclusion from all churches: this is a species of personal restraint, that involves in it consequences that belong to the religious sanction.
• XIII. Exclusion from the benefit of the burial service. I do not know under what class to rank this punishment: I do not very precisely know what benefit it is to a man after he is dead, to have the service read over his body: if it be anything, it belongs to the religious sanction
• XIV. Exclusion from the benefit of the sacraments of Baptism and the Lord's Supper. This belongs altogether to the religious sanction.

So much for the lesser excommunication. The greater adds two other circumstances to the catalogue:

• I. Exclusion from the commerce and communion of the faithful.[7]
• II. Disability of making a Will. [8] This is a punishment that affects the power of the party: viz. in the present case, the investitive power performable in a particular manner, with respect to the ownership of such property as he shall die entitled to. In as far as the power of making a will includes that of appointing a Guardian to a child, as also that of an Executor to manage the property of a person, of whom the party in question was executor: it is a punishment in alienam personam. The child may suffer for want of a proper Guardian. The persons interested in the effects of the first testator may suffer for want of a proper person to manage those effects.

This is the mode, and the only mode of punishment inflicted by those Courts that go by the name of Ecclesiastical, or Spiritual Courts. This they are forced to make serve for all occasions; they have neither less nor greater: it is the only punishment they have. When this punishment is pronounced, they have exhausted their whole Penal Code. If its brevity be its recommendation, it must be confessed that it has no other. Let us consider a little more particularly, the punishments of which it is composed. Of imprisonment, nothing in particular need be said at present.

The punishment of penance demands more attention. It consists in the penitent being exposed bare-headed and bare-legged, with a white sheet wrapped round the body, either in the parish church, or in the cathedral, or in the public market,[9] there to pronounce a certain form of words containing the confession of his crime. This, as has been already observed, is a corporal punishment of the ignominious kind, and might, if defined with precision, be employed with the same advantage as are other punishments of that description. The time at which it should take place, and the duration of the penance, ought to be determined, but there is nothing fixed with regard to them, so that it may continue for several hours, or only for an instant. It may take place before a crowd of spectators, or in the most absolute solitude.---Besides this, there is a vast difference between the parish church of a village, and the cathedral of a great city, or the public market of a district. The larger or smaller concourse of spectators will render the punishment more or less severe.

The penitent ought to pronounce a formula containing an acknowledgment of his crime; a different formula ought therefore to be provided for every crime by law. This formula may be pronounced either distinctly or indistinctly---a man can hardly be expected, willingly, to proclaim his own shame. It would therefore be proper that he should only be required to repeat the words, which should be clearly and distinctly pronounced by an officer of Justice, as is practised with respect to the administration of oaths. Certain persons, also, should be nominated to preside over the ceremony, and ascertain that everything is done according to law.

Till these points are regulated, this mode of punishment, though good in itself, will always be subject, as it is at present, to the greatest abuses. It will be executed with inequality, and capriciously, according to the condition of the individuals, rather than according to their crimes, and according as the character of the Judge is more or less severe.

Penance is the punishment usually imposed, says Dr Burn, ``in the case of incest or incontinency'', these two offenses are classed together by the ecclesiastical compiler, and opposed to what he calls smaller offenses and scandals.--- When we consider how far these two first offenses are removed from one another, one is astonished to see them classed together, and visited with the same punishment. Far be it from me to treat lightly the exposure of innocence to infamy, the disturbance of domestic felicity, or to degrade the chaste raptures of the marriage bed to a level with the bought smiles of harlots. But there are degrees in guilt, which I see not why it should be meritorious to confound.

It is not often that we hear of this punishment being put in practice: examples of it were more frequent in former times, but now it is most commonly commuted for by the payment of a sum of money.

II. As to the different legal incapacities which form part of this punishment, the objections to which they are liable have been pointed out elsewhere. (See Book IV. Misplaced Punishments.)

III. Part of the punishment consists in the delinquent's being looked upon, if men think fit to look upon him in that light, as a heathen and a publican.

To try the effect of generals, the only way is to apply them to particulars. A. is not willing, or not able, to pay his Proctor's, or another man's Proctor's fees. He is in consequence excommunicated. Amongst his other punishments, he is to be looked upon as a heathen or a publican, that is, as being such a sort of man as Socrates, Cato Titus, Marcus Antoninus, a collector of taxes, or a Lord of the Treasury. The heaping of hard names upon a man might, at one time, have been deemed a punishment, but such legal trifling now a-days, serves only to render the laws ridiculous.

IV. Exclusion from the churches. In our days an exclusion of this sort shows rather oddly under the guise of punishment. The great difficulty is now not to keep people out of the churches, but to get them in. The punishment, however, was not ill designed, if it were intended to increase the desire of attending there, by forbidding it. The general effect of every prohibition being, to give birth to a desire to infringe it. It affords a presumption, that what is prohibited is in itself desirable, or at least, desirable in the opinion of the legislator, or he would not have prohibited it: such is the natural supposition when the interdiction relates to an unknown object; but even when it relates to an object which has been tried, and neglected from distaste, the prohibition gives to it another aspect. The attention is directed to the possible advantages of the act: having begun to think of them, the individual fancies he perceives them, and goes on to exaggerate their value; on comparing his situation with that of those who enjoy this liberty, he experiences a feeling of inferiority; and by degrees, a most intense desire often succeeds to the greatest indifference.

Those who are forward to refer the propensity to transgress a prohibition of any kind to an unaccountable perversity, and unnatural corruption in human nature, as if it were not reconcileable to the known dominion of the ideas of pain and pleasure over the human mind, do an injustice to man's nature, in favour of their own indolence. Man, according to these superficial moralists, is a compound of inconsistencies: everything in him is an object of wonder---everything happens contrary to what they would expect; strangers to the few simple principles which govern human nature, the account they give of everything is, that it is unaccountable.

With respect to those parts of the punishment of excommunication which belong to the religious sanction, such as exclusion from the sacraments, their most striking imperfection is, their extreme inequality: their penal effect depends on the belief and sensibility of the individuals. The blow which would produce torments of agony in one person, will only cause the skin of another to tingle. There is no proportion in these punishments, and nothing exemplary: those who super, languish in secrecy and silence; those who do not suffer, make a jest and a laughing stock of the law in public. They are punishments which are thrown at hazard among a crowd of offenders, without care whether they produce any effect or none.

I speak of these punishments with reference only to the present life; for who is there that supposes that a sentence of excommunication can carry with it any penal consequences in a future state. For what man, reasoning without prejudice, can believe that God hath committed so terrible a power to beings so feeble and so imperfect, or that the Divine justice could bind itself to execute the decrees of blind humanity; that it could allow itself to be commanded to punish otherwise than it would have punished of itself. A truth so evident could only have been lost sight of by an abasement, which could only have been prepared by ages of ignorance. [10]