clemency, he allows the sons of the criminal to live, although in strict justice, being tainted with hereditary guilt, they ought to suffer the punishment of their father. But they shall be incapable of inheritance; they shall be abandoned to the extreme of poverty and perpetual indigence; they shall be excluded from all honours and from the participation of religious rites; the infamy of their father shall ever attend them, and such shall be the misery of their condition, that life shall be a punishment and death a comfort.127 Among the Anglo-Saxons, before the time of Cnut, the child, even the infant in the cradle, was liable to be sold into slavery for the payment of penalties incurred by the father, being “held by the covetous to be equally guilty as if it had discretion.”128 Even later, the child of an outlaw, following the condition of the father, also became an outlaw; and this grievance was only partly remedied by Edward the Confessor, who relieved from the consequences of the father’s outlawry such children as were born before he was outlawed, but not such as were born afterwards.129 During the Middle Ages it was the invariable rule to confiscate the entire property of an impenitent heretic, a rule which was justified on the ground that his crime is so great that something of his impurity falls upon all related to him.130 The Pope Alexander IV. also excluded the descendants of an heretic to the second generation from all offices in the Church.131 Owing to religious influence, illegitimate children were not only deprived of the title to inheritance, but they were treated by some law-books as almost rightless beings, on a par with robbers and thieves.132 If a person committed suicide, his goods were confiscated, and, according to a French mediæval law, his wife was besides deprived of her own private property.133 Even in the latter half of the eighteenth century, in France, in the case of an attempt made against the life of the king, the whole family of the criminal was banished.134 Nay, in various European countries, up to quite recent times—in England till 1870—forfeiture of property has been the punishment prescribed for certain crimes, including suicide;135 which means, if not actually the imposition of penalties on the survivors in a case where the culprit himself is out of reach, at least a gross disregard of their ordinary rights of property. It is hardly necessary to point out how often, in the very society in which we live, “social punishments” are inflicted upon children for their father’s wrongs.
119 Douglas, Society in China, p. 71 sq. Ta Tsing Leu Lee, sec. ccliv. p. 270.
120 Bancroft, Native Races of the Pacific States, ii. 459.
121 Meursius, Themis Attica, ii. 2, in Gronovius, Thesaurus Graecarum Antiquitatum, v. 1968.
122 Aristotle, De republica Atheniensium 1. Cf. ibid. 20.
123 Curtius Rufus, De gestis Alexandri Magni, vi. 11. 20.
124 Dionysius of Halicarnassus, Antiquitates Romanae, viii. 80.
125 Ibid. viii. 80.
126 Codex Iustinianus, ix. 47. 22.
127 Ibid. ix. 8. 5.
128 Laws of Cnut, ii. 77. Cf. Lappenberg, History of England under the Anglo-Saxon Kings, ii. 414; Wilda, op. cit. p. 906.
129 Leges Edwardi Confessoris, 19.
130 Lecky, History of Rationalism in Europe, ii. 36, n. 1. Eicken, Geschichte und System der mittelalterlichen Weltanschauung, p. 572 sq. Paramo, De origine et progressu Sancti Inquisitionis p. 587 sq.
131 Eicken, op. cit. p. 573.
132 Ibid. p. 573.
133 Du Boys, Histoire du droit criminel des peuples modernes, ii. 236.
134 Hertz, Voltaire und die französische Strafrechtspflege im achtzehnten Jahrhundert, p. 27.
135 Stephen, History of the Criminal Law of England, i. 487 sq.; iii. 105.
For the explanation of these facts we have to remember what has been said before about collective responsibility in the case of revenge. Speaking of the Chinese doctrine of family solidarity, Dr. de Groot observes that, “under the influence of this doctrine, families, not men individually, came to be regarded, from the Government’s point of view, as the smallest particles, the molecules of the nation, each individual being swallowed up in the circle of his kinsfolk.”136 Such a doctrine assumes that the other members of the family-group are, in a way, accessories to any crime committed by a fellow-member. “Human nature,” says Lord Kames, “is not so perverse, as without veil or disguise to punish a person acknowledged to be innocent. An irregular bias of imagination, which extends the qualities of the principal to its accessories, paves the way to that unjust practice. This bias, strengthened by indignation against an atrocious criminal, leads the mind hastily to conclude, that all his connections are partakers of his guilt.”137 Among the ancients we also meet with a strong belief that, according to the course of nature, wicked fathers have wicked sons. “That which is begot,” says Plutarch, “is not, like some production of art unlike the begetter, for it proceeds from him, and is not merely produced by him, so that it appropriately receives his share, whether that be honour or punishment.”138 To destroy, or to make harmless, the family of an offender may be, not only an act of retaliation, but a precaution; according to an old Greek adage, “a man is a fool if he kills the father and leaves the sons alive.”139 This especially holds good for treason, which generally suggests accomplices; and of all crimes for which penalties are imposed upon other individuals besides the culprit, treason is probably the most common. This crime is also particularly apt to evoke the hatred of those who have the power to punish, hence the punishment of it, being closely allied to an act of revenge, is often inflicted without due discrimination. Moreover, by being extended to the criminal’s family, the punishment falls more heavily upon himself as well. Again, in case the crime is of a sacrilegious character, it is supposed