it is well observed, in the “dictionnaire encyclopédique,” in the article “confiscation,” that the fisc, whether public, or royal, or seignorial, or imperial, or disloyal, was a small basket of reeds or osiers, in which was put the little money that was received or could be extorted. we now use bags; the royal fisc is the royal bag.
in several countries of europe it is a received maxim, that whosoever confiscates the body, confiscates the goods also. this usage is established in those countries in particular where custom holds the place of law; and in all cases, an entire family is punished for the fault of one man only.
to confiscate the body, is not to put a man’s body into his sovereign lord’s basket. this phrase, in the barbarous language of the bar, means to get possession of the body of a citizen, in order either to take away his life, or to condemn him to banishment for life. if he is put to death, or escapes death by flight, his goods are seized. thus it is not enough to put a man to death for his offences; his children, too, must be deprived of the means of living.
in more countries than one, the rigor of custom confiscates the property of a man who has voluntarily released himself from the miseries of this life, and his children are reduced to beggary because their father is dead. in some roman catholic provinces, the head of a family is condemned to the galleys for life, by an arbitrary sentence, for having harbored a preacher in his house, or for having heard one of his sermons in some cavern or desert place, and his wife and family are forced to beg their bread.
this jurisprudence, which consists in depriving orphans of their food, was unknown to the roman commonwealth. sulla introduced it in his proscriptions, and it must be acknowledged that a rapine invented by sulla was not an example to be followed. nor was this law, which seems to have been dictated by inhumanity and avarice alone, followed either by c?sar, or by the good emperor trajan, or by the antonines, whose names are still pronounced in every nation with love and reverence. even under justinian, confiscations took place only in cases of high treason. those who were accused having been, for the most part, men of great possessions, it seems that justinian made this ordinance through avarice alone. it also appears that, in the times of feudal anarchy, the princes and lords of lands, being not very rich, sought to increase their treasure by the condemnation of their subjects. they were allowed to draw a revenue from crime. their laws being arbitrary, and the roman jurisprudence unknown among them, their customs, whether whimsical or cruel, prevailed. but now that the power of sovereigns is founded on immense and assured wealth, their treasure needs no longer to be swollen by the slender wreck of the fortunes of some unhappy family. it is true that the goods so appropriated are abandoned to the first who asks for them. but is it for one citizen to fatten on the remains of the blood of another citizen?
confiscation is not admitted in countries where the roman law is established, except within the jurisdiction of the parliament of toulouse. it was formerly established at calais, where it was abolished by the english when they were masters of that place. it appears very strange that the inhabitants of the capital live under a more rigorous law than those of the smaller towns; so true is it, that jurisprudence has often been established by chance, without regularity, without uniformity, as the huts are built in a village.
the following was spoken by advocate-general omer talon, in full parliament, at the most glorious period in the annals of france, in 1673, concerning the property of one mademoiselle de canillac, which had been confiscated. reader, attend to this speech; it is not in the style of cicero’s oratory, but it is curious:
“in the thirteenth chapter of deuteronomy, god says, ‘if thou shalt find a city where idolatry prevails, thou shalt surely smite the inhabitants of that city with the edge of the sword, destroying it utterly, and all that is therein. and thou shalt gather all the spoil of it into the midst of the street thereof, and shalt burn with fire the city and all the spoil thereof, every whit, for the lord thy god.’
“so, in the crime of high treason, the king seized the property, and the children were deprived of it. naboth having been proceeded against, ‘quia maledixerat regi,’ king ahab took possession of his inheritance. david, being apprised that mephibosheth had taken part in the rebellion, gave all his goods to sheba, who brought him the news — ‘tibi sunt omnia qu? fuerunt mephibosheth.’”
the question here was, who should inherit the property of mademoiselle de canillac — property formerly confiscated from her father, abandoned by the king to a keeper of the royal treasure, and afterwards given by this keeper of the royal treasure to the testatrix. and in this case of a woman of auvergne a lawyer refers us to that of ahab, one of the petty kings of a part of palestine, who confiscated naboth’s vineyard, after assassinating its proprietor with the poniard of jewish justice — an abominable act, which has become a proverb to inspire men with a horror for usurpation. assuredly, naboth’s vineyard has no connection with mademoiselle de canillac’s inheritance. nor do the murder and confiscation of the goods of mephibosheth, grandson of king saul, and son of david’s friend jonathan, bear a much greater affinity to this lady’s will.
with this pedantry, this rage for citations foreign to the subject; with this ignorance of the first principles of human nature; with these ill-conceived and ill-adapted prejudices, has jurisprudence been treated on by men who, in their sphere, have had some reputation.
