BANISHMENT (from the French Bannissemeni), expulsion from any coun try or place by the judgment of some court or other competent authority.
The term has its root in the word ban, a word of frequent use in the middle ages, which has the various signification of a public edict or interdict, a proclamation, a jurisdiction and the district within it, and a judicial punishment. Hence a person excluded from any territory by public authority was said to be banished--ban nitus, in bannum misaus. (Ducan , voc. Bannire, Batman; Pasquier, pp. 127, 732.) [BAN.] As a punishment for crimes, compul sory banishment is unknown to the ancient unwritten law of England, al though voluntary exile, in order to escape other punishment, was sometimes mitted. [Anztraznom.] The crown has always exercised, in certain emergencies, the prerogative of restraining a subject from leaving the realm; but it is a known maxim of the common law, that no sub ject, however criminal, shall be sent out of it without his own consent or by authority of parliament. It is accordingly declared by the Great Charter, that " no freeman shall be exiled, unless by the judgment of his peers or the law of the land." There are, however, instances in our history of an irregular exercise of the power of banishing an obnoxious subject by the mere authority of the crown • and in the case of parliamentary impeachment for a misdemeanor, perpetual exile has been made part of the sentence of the House of Lords, with the assent of the king. (Sir Giles Mompesson's case, in the reign of James I., reported by Rushworth and Selden, and cited in Comyus, Digest, tit. " Parliament," 1. 44.) Aliens and Jews (formerly regarded as aliens) have, in many instances, been banished by royal proclamation.
Banishment is said to have been first introduced as a punishment in the ordi nary courts by a statute in the thirty ninth year of the reign of Elizabeth, by which it was enacted that "such rogues as were dangerous to the inferior people should be banished the realm ;" but an in stance occurs in an early statute of un certain date (usually printed immediately after one of the eighteenth year of Edward II.), by which butchers who sell unsound meat are compelled to abjure the village or town in which the offence was com mitted. At a much later period the
punishment now called transportation was sanctioned by the legislature, and has in other cases been made the condi tion on which the crown has consented to pardon a capital offence.
Some towns of England used to inflict the punishment of banishment from the territory within their jurisdiction, for life and for definite periods. The ex tracts from the Annals of Sandwich, one of the Cinque Ports, which are printed in Boys' History of Sandwich,' contain many instances of this punishment in the fifteenth and sixteenth centuries.
Banishment in some form has been prevalent in the criminal law of most na tions, ancient as well as modern. Among the Greeks two kinds were in use :-1. Perpetual exile (ory6), attended with confiscation of property, but this banish ment was probably never inflicted by a judicial sentence ; at least among the Inter Athenians a sentence of perpetual banishment appears only to have been pronounced when a criminal, who was accused of wilful murder, for instance, withdrew from the country before sen tence was passed against him for the crime with which he was charged. The term ',huge (cpuyfj) was peculiarly applied to the case of a man who fled his country on a charge of wilful murder, and the pro perty of such a person was made public. Those who had committed involuntary homicide were also obliged to leave the territory of Attica, but the name phuge was not given to this withdrawal, and the property of the exile was not con fiscated. Such a person might return to Attica when he had obtained the permission of some near kinsman of the deceased. (Demosthenes, Against Aristocrates, cc. 9, 16.) 2. Ostracism, as it was called at Athens, and in some other democratical states of Greece, or Petalism, the term in use at Syra cuse, was a temporary expulsion, unac companied by loss of property, and in flicted upon persons whose influence, arising either from great wealth or emi nent merit, made them the objects of popular suspicion or jealousy. Aristides was ostracized from Athens for ten years, not because he had done any illegal act, but because people were jealous of his influence and good fame.