We now come to the last of the two grand divisions of Punishments —Privative Punishments, or Forfeitures.
The word forfeiture is never used but with reference to some possession.*
Possessions are either substantial or ideal: substantial, when it is the object of a real entity (as a house, a field;) ideal, when it is the object of a fictitious entity (as an office, a dignity, a right.)
The difficulty of dealing with cases of this description will immediately be seen. Real entities have all a common genus, to wit, substance. Fictitious entities have no such common genus, and can only be brought into method in virtue of the relation they bear to real objects.
Possessions, of whatsoever nature they be, whether real or fictitious, are valuable; and to forfeit them can never otherwise be a punishment, than as far as they are instruments of pleasure or security. By specifying, then, the sort of persons or things from which the benefit said to belong to a fictitious possession is actually derived, all will be done that can be done towards giving a methodical view of those possessions, and of the penal consequences of forfeiting them.†
To investigate, therefore, the several kinds of proper forfeitures, it is necessary to investigate the several kinds of possessions. On this subject, however, as it comes in only collaterally on the present occasion, it will not be necessary to insist very minutely.
Possessions are derived either from things only, or from persons only; or from both together. Those of the two first sorts may be styled simple possessions; those of the other, complex.
Possessions derived from things may consist either — 1. in money: these may be called pecuniary; 2. in other objects at large. The former may be styled pecuniary; the latter quasi-pecuniary. Accordingly, forfeiture of money may be styled pecuniary forfeiture: forfeiture of any other possession derived from things, quasi-pecuniary. Quasi-pecuniary forfeitures are capable of a variety of divisions and subdivisions; but as these distinctions turn upon circumstances that make no difference in the mode of punishment, it will not be necessary, on the present occasion, to enter into any such detail.
Possessions derived from persons, consist in the services rendered by those persons. Services may be distinguished into exigible and inexigible. By exigible, I mean such as a man may be punished (to wit, by the political sanction) for not rendering: by inexigible, such as a man cannot be punished for not rendering; or, if at all, not by any other sanction than either the moral or the religious.‡ The faculty of procuring such as are exigible is commonly called power, to wit, power over persons: the faculty or chance of procuring such as are inexigible depends, in great measure, upon reputation; hence result two farther kinds of forfeiture: forfeiture of power and forfeiture of reputation.*
Reputation may be distinguished into natural and factitious: by factitious, I mean that which is conferred by rank or dignity.
Credibility is a particular species of reputation — the reputation of veracity. Hence we have two further kinds of forfeiture, both subordinate to that of reputation: forfeiture of rank or dignity, and forfeiture of credibility.
As to complex possessions, and the forfeitures that relate to them, these are too heterogeneous to be arranged in any systematic method: all that can be done is to enumerate them. Thus much only may be said of them in general, that the ingredients of each of them are derived from both the classes of objects which we have mentioned as being the sources from which the several kinds of simple forfeitures are derived.
It should seem, however, that they might all of them, without any great violence, be brought under the title of conditions. Conditions, then, may, in the first place, be distinguished into ordinary and peculiar.
Ordinary conditions or modes of relationship may be distinguished into natural and acquired. By natural conditions, I mean those which necessarily belong to a man by birth; to wit, in virtue of either his own birth or that of some other person to whom he stands related; such as that of son, daughter, father, mother, brother, sister, and so on, through the several modes of relationship, constituted by the several degrees of consanguinity. To stand in any of these relations to such or such a person may be the source of various advantages. These conditions, it is plain, cannot themselves be forfeited; a man, however, may, and in some instances has been said to have forfeited them, and may actually be made to forfeit many of the advantages attending them.
Acquired conditions may be distinguished, in the first place, into political and religious; and political again into domestic and public. Domestic conditions may be distinguished into family conditions and professional. Family conditions are — 1st, The matrimonial; or that of being husband or wife to such a person; 3d and 4th, that of being guardian or ward; 5th and 6th, that of being master or servant to such a person.
By public political condition, I mean that of belonging to any voluntary society of men instituted on any other than a religious account.
By religious condition, I mean that of belonging to any society or sect instituted for the sake of joining in the performance of religious ceremonies.
Of conditions that may be termed peculiar, the several sorts may, it should seem, be all comprised under the head of conditions constituted, either 1st, by offices; or 2dly, by corporation privileges. A right of exercising an office is an exclusive right to render certain services.
Conditions constituted by offices may be ranked in the number of complex possessions, inasmuch as they are apt to include the three simple possessions following; to wit, a certain share of power, a certain rank, and a certain salary, or fees or other emoluments coming under the head of pecuniary or quasipecuniary possessions.
Of offices there is an almost infinite variety of kinds, and a still greater variety of names, according to the almost infinite modifications of rank and power in different countries, and under different governments. This head is, consequently, susceptible of a great variety of divisions and subdivisions; but these it will not be necessary, on the present occasion, to consider.
Corporations may be distinguished into political and religious. Under the head of religious corporations may be included the various monastic orders established in countries professing the Roman Catholic religion.
As to political corporations, the catalogue of the possessions that may be annexed to the condition of one who is a member of those bodies is so various, that no other account need, on the present occasion, or indeed can be given of it, than that there are scarce any of the simple possessions above enumerated, but may be included in it.†
To the condition of one who is a member of a religious order or corporation, may be annexed, besides the above possessions, others, the value whereof consists in such or such a chance as they may appear to confer of enjoying the pleasures of a future life, over and above such chance of enjoying the same pleasures as appears to be conferred by the condition or privilege of being an ordinary professor of the same religion.
As an appendix to the above list of possessions, may be added two particular kinds of possessions, constituted by the circumstance of contingency, as applied in different ways to each one in that list. These are, the legal capacity of acquiring, as applied to those articles respectively, and the protection of the law, whereby a man is secured against the chance of losing them, if acquired. These abstract kinds of possessions form the subject of so many kinds of forfeiture: forfeiture of legal capacity and forfeiture of the protection of the law: forfeiture of legal capacity with respect to any possession, taking away from a man whatever chance he might have of acquiring it; forfeiture of protection, subjecting him to a particular chance of losing it.*
Punishments of this class admit of no distinctions; and this, however paradoxical it may seem, from no other reason than their extreme variety. The way in which a man suffers, who is punished by the moral sanction, is by losing a part of that share which he would otherwise possess of the esteem or love of such members of the community as the several incidents of his life may lead him to have to do with. Now, it is either from the esteem they entertain for him, or the love they bear him, or both, that their good-will towards him, in a great measure, depends: moreover, the way in which this good-will displays itself, is by disposing the person who entertains such affection, to render good offices, and to forbear doing ill offices (or in other words, to render inexigible services) to the party towards whom it is entertained; the way in which the opposite affection, ill-will, displays itself, is accordingly by disposing the former to forbear doing good offices, and if it has risen to a certain degree, by disposing him to render ill offices, as far as may be consistent with his own safety, to the latter.
Now then, from the good offices of one man to another, may all sorts of possessions, and through them, or even more immediately, all sorts of pleasures, be derived. On the other hand, from the withholding of the good offices one man might have expected from another, may all sorts of pains, and death itself, be also derived; much more may they from positive ill offices added to those other negative ones. And what are the good offices which you may be disposed to withhold from me, or the ill offices you may be disposed to do me, from my having become the object of your ill-will? It is plain, not one or other particular species of good or ill office, but any species whatever, just as occasion serves, that shall be proportionate to the strength of your ill-will, and consistent with your own safety. This consideration will make our work short, under the head which respects the several modes or species of punishment subordinate to the mode in question.
The same consideration will make it equally short under the second head, relative to the evils producible by the mode or modes of punishment in question. These, it must have been already seen, may be all sorts of evils: all the different sorts of evils which are producible by any of the punishments belonging to the political sanction; by any punishments properly so called: in a word, all the different sorts of evils to which human nature is liable.
But though the punishments belonging to the moral sanction admit not of any varieties that are separable from one another, there are two distinct parcels, as it were, into which the evils produced by any lot of punishment issuing from this source, on the occasion of any offence, may be divided. One (which, as being the basis of the other, may be mentioned first, though the last in point of time) consists of the several contingent evils that may happen to the offender in consequence of the ill-will he has incurred; the other consists of the immediate pain or anxiety, the painful sense of shame, which is grounded on the confused apprehension of the unliquidated assemblage of evils above mentioned. It is this last which is referable in a peculiar manner to the moral sanction, and which cannot be produced by the political, any otherwise than as far as those who have the management of that sanction can gain an influence over the moral: it may, therefore, for distinction sake, be styled the characteristic evil of the moral sanction. This must obtain, in a greater or less degree, upon every instance of detected delinquency, unless in those callous and brutish natures, if any such there be, in whom all sense of disgrace, and all foresight of the consequences, is utterly extinguished. The others above spoken of may be styled the casual evils.
These casual evils (as we have already intimated,) owing to their extreme uncertainty, admit not of any determinate variations in point of quality: in point of quantity, however, they do admit of some distinctions, resulting from — 1st, their Intensity; 2dly, their Extent. This distinction ought not to be overlooked, since we shall have occasion to make frequent application of it to practice.
These two lots of evils, howsoever distinguishable, intermix with and aggravate one another. I have done an immoral act: I am discovered: I perceive as much. Now then, before I happen to have occasion to avail myself of the good offices of such of my acquaintance as come to know of it — before I happen to be in a way to suffer from the denial of those good offices — in a word, before I have experienced any of the casual evils annexed by the moral sanction to my delinquency, I already foresee more or less clearly, and apprehend more or less strongly, the loss of those good offices and of that good-will: I feel the painful sense of shame, the pain of ignominy; I experience, in a word, the characteristic evil of the moral sanction as the punishment of my misbehaviour. This sense of shame stamps the marks of guilt upon my deportment. This being the case, either out of despair I avoid my acquaintance, or else I put myself in their way. If I avoid them, I by that means already deprive myself of their good offices: if I put myself in their way, the guilt which is legible in my countenance, advertises and increases their aversion: they either give an express denial to my request, or, what is more common, anticipate it by the coldness of their behaviour. This reception gives fresh keenness to the sting of shame, or (in the systematical language I have ventured to make use of,) the experiment I have made of the casual evils adds force to the characteristic evils of this sanction.
We have already intimated the distinction between positive and negative ill offices: to the former, and even in a few instances to the latter, it is the duty, and a great part of the business, of the political magistrate to set limits. These limits, however, may come accidentally to be transgressed, as there are scarce any laws that can be made but what may come accidentally to be disobeyed. On this account, the evils that may result from this source remain still indeterminate and unlimited. But were the laws that might be made in this behalf ever so certain in their operation, those evils would still remain indeterminate and unlimited, notwithstanding. For so uncertain and unforeseeable may be the connexion between the refusal of a good office, and the miseries which in particular circumstances may be the consequences of such a refusal, that no law could make a secure provision against those miseries in every case, without such a subversion of all liberty and all property as would produce much greater miseries. Your giving me a shilling to buy me food, or taking me twenty miles to a physician, may, on a critical occasion, save me from an excruciating disease; but no law, without leaving it to the determination of the person in want, can with sufficient certainty describe such occasions; nor can any law, without depriving you of all liberty and all property, oblige you to give money to, or take a journey for, every man who shall determine himself to be in want of such assistance.
Howosever this be with regard to negative ill offices, positive ill offices not only may be limited, but in most cases may be, and commonly are, forbidden. In no settled state of government is private displeasure permitted to rise so high as to vent itself indiscriminately in any of those direct ways of inflicting pain which the political magistrate himself may have thought it expedient to recur to. However flagrantly immoral may have been the conduct of a delinquent, persons at large are never permitted, of their own authority; to punish him by beating or maiming, or putting him to death. Positive ill offices may be divided into such as display themselves in actions at large, and such as display themselves in discourse. Now, it is to speech that the latitude which is still left to the right of rendering positive ill offices in a direct way, is principally confined:* and even this right is commonly subject to a number of limitations. But ill offices which are confined to speech, are not, if they stop there, productive of any evil. When they are, it is ultimately by disposing other persons to entertain a displeasure against the same person, and manifest it by actions of another kind. If, then, such positive ill offices as display themselves in actions at large be excluded, all that remains is resolvable ultimately into negative ill offices. And of these, those which a delinquent has in ordinary cases to apprehend, amount only to such as are not illegal.
Nor is even this a contemptible and inconsiderable source of suffering. Dependent as men in a state of society are upon one another, the punishment derived from the source in question, even when narrowed by all these restrictions, may, and indeed frequently does, rise to a tremendous height. It admits of no evasion: it comes upon a man from all quarters: he can see no end to its duration, nor limit to its effects. It is not unusual for it to bereave him of the chief pleasures and sources of profit he has set his heart upon: it may deprive him of all those profits and enjoyments he had been accustomed to expect at the hands of his friend or his patron: by setting his common acquaintance at a distance from him, it may fill the detail of his life with a perpetual train of disappointments and rebuffs. It leaves him joyless and forlorn: and, by drying up the source of every felicity, it embitters the whole current of his life.
Were we indeed to inquire minutely into the distinction between the nature of the political and moral sanctions, it would come out that, of the evils which, when considered as issuing from the moral sanction, I have styled casual evils, some are even more likely to be brought upon a man by the action of one of these sanctions, and some others by that of the other. But as to the species of evil, this is all the distinction we shall be able to make out; for there is not any evil which the exertion of one of these forces may bring upon a man, but which may also be brought upon him by the action of the other.
The most studied and artificial torments, for instance, that can be invented by a political magistrate, and the most unlikely for a man to be exposed to suffer by the unassisted powers of nature, or even from the unauthorized resentment of an individual, are what he may by accident be exposed to from the latter source. It may be for want of some evidence that an individual might furnish, and from ill-will forbears to furnish, that I may have been doomed to these torments by a judge; or if the like torments be supposed to be inflicted by the unauthorized violence of an enemy, they may be attributed in the first place, indeed, to the vengeance of that enemy; but in the second place, to the disesteem and ill-will borne me by some stranger, who having it in his power to rescue me, yet exasperated against me on account of some real or supposed instance of immorality in my behaviour, chose rather to see me suffer than to be at the pains of affording me his assistance.
On the other hand, the whole sum of the evils depending upon the moral sanction, to wit, not only the casual evils, but the sense of infamy which constitutes the characteristic evil, is liable in many instances to be brought upon a man by the doom of the political magistrate. This is what we have found it unavoidably necessary, on various occasions, to give intimation of, and what we shall have need more particularly to enlarge upon hereafter.
It is in the manner, then, in which the evils that come alike under the department of each of the two sanctions come to be inflicted, that the only characteristic difference discernible between these two sanctions is to be seen. With regard to punishment issuing from the political sanction, the species, the degree, the time, the place, the person who is to apply it, are all assignable. With regard to that which may issue from the moral sanction, none of these particulars are assignable.
When I say assignable, I must be understood to speak with reference to some particular time, coincident with or subsequent to that of the commission of the offence. At that very time, then, with respect to political punishment, that is, with respect to personal punishments and forfeitures, many of those particulars, and sometimes all of them, are assignable, and may be foreseen. At the time the offence (theft suppose) is committing, it may be foreseen that a number of stripes given with such an instrument, not more than so many, nor fewer than so many, will be inflicted (in case of detection) so many days or weeks hence, at such a place and by the hands of such an executioner: and vice versâ, when they come to be inflicted, the punishment will be seen to be the consequence of such an offence. Now, when the organical pain produced by the punishment thus inflicted is over, all the punishment for that offence, as far as depends upon the political sanction, is commonly over and at an end. But as to the ill offices, as well negative as positive, which constitute the substance and groundwork of the moral sanction, no man can tell what they will be — what particular evils they will subject a man to — when they will commence, or when they will end — where they will display themselves, nor who will render them. Nor, vice versâ, when they have actually been rendered, when such or such a neighbour has shut his door against me, and I am pining with hunger or shivering with cold, can I always know for certain that the immorality I was guilty of at such or such a time was the occasion of his unkindness. In a word, determinateness is the perfection of the punishments belonging to the political sanction: indeterminateness is the very essence of those issuing from the moral.
A word or two may be of use in this place with respect to the nomenclature employed in speaking of the punishments belonging to this sanction. The expressions made use of on this occasion are singularly various: a whole legion of fictitious entities are created, for the purpose of representing the one fundamental idea in question, under the different aspects of which it is susceptible. The names of these fictitious entities are many of them disparate: they require different sets of words to enable them to make a meaning; and the coincidence lies not between the import of these names when separately taken, but between certain sentences or propositions, in which they may respectively be made to bear a part. Among these words may be reckoned reputation, honour, character, good name, dishonour, shame, infamy, ignominy, disgrace, aversion, and contempt. In speaking, then, of a man as suffering under a punishment of the moral sanction, it may be more or less convenient, according to the occasion, to use, amongst others, any of the following expressions: We may say that he has forfeited his reputation, his honour, his character, his good name; that his fame has been tarnished; that his honour, his character, or his reputation, has received a stain; that he stands disgraced; that he has become infamous; that he has sunk under a load of infamy, ignominy, or disgrace; that he has fallen into disgrace, into disesteem, into disrepute; that he has incurred the ill-will, the aversion, the contempt of the neighbourhood, of the public; that he is become an object of aversion or contempt. It were the task rather of the lexicographer than the jurist to exhaust the catalogue of these expressions. Those which have been already exhibited may be sufficient to advertise the reader of the similarity there may be in point of sense between a variety of other expressions of like import, however dissimilar they may be in sound.
Hitherto we have considered the punishment belonging to the moral sanction in no other point of view than that in which it appears when standing singly, uncombined with and uninfluenced by the political. In this state, the direction given to it, and the force with which it acts, are determined altogether by the persons to whom it belongs ultimately to dispense it, unassisted and uncontrouled by the political magistrate. In this state it acted before the formation of political society, before the creation of that artificial body of which the political magistrate is the head. In this state, by its connexion with the various modes of conduct which it happened to be employed to prohibit or to recommend, it gave birth to that fictitious set of rules which are what some moralists have sometimes at least in view, when they speak of the law of nature. In this state it was an engine, to the power of which the political magistrate was a witness, before the construction of that which is of his own immediate workmanship. It then was, it still is, and it ever must be, an engine of great power, in whatever direction it be applied; whether it be applied to counteract or to promote his measures. No wonder, then, he should have sought by various contrivances to press it into his service. When thus fitted up and set to work by the political magistrate, it becomes a part of the vast system of machinery to which we have given the name of the political sanction. And now, then, we are in a condition to discuss the nature of that genus of political punishment which, in systems of jurisprudence, is commonly spoken of under the name of infamy, or forfeiture of reputation.
We will now proceed to examine the punishments belonging to the moral sanction itself, independently of any employment of it by the magistrate to aggravate or guide the effect of his designs.
Punishments of this class, as has been already said, admit of no distinctions: they comprise all sorts of evils: the ill-will produced manifests itself in a variety of modes, that can neither be calculated nor foreseen. They admit, then, of no precise description; for it is only when the effects are determinate, that a punishment admits of a description. Will they be analogous to the offence, or unfrugal, or excessive? Upon these points nothing can be said.
Our observations will be comprised under three heads:— their divisibility, equability, and exemplarity.
1. These punishments admit of minute division: they have all the degrees possible from mere blame to infamy, from a temporary suspension of good-will, to active and permanent ill-will: but these several degrees depend altogether upon accidental circumstances, and are incapable of being estimated by anticipation. Punishments of the pecuniary or chronical class, as, for example, imprisonment, are susceptible of being exactly measured: punishments that depend on the moral sanction, not. Before they are experienced, the value put upon them is necessarily extremely inaccurate. In respect of intensity, they are liable to be inferior to the greater part of those belonging to the political sanction; they consist more in privations of pleasure, than in positive evils. This it is that constitutes their principal imperfection; and it is solely for supplying this imperfection, that penal laws were established.
One of the circumstances by which their effect is weakened, is the locality of their operation. Do you find yourself exposed to the contempt of the people with whom you are in the habit of associating? to exempt yourself from it, all that you have to do is to change your abode. The punishment is reduced to the giving a man the option to remain exposed to the inconveniences resulting from this contempt, or to inflict on himself the punishment of banishment, which may not be perpetual. He does not abandon the hope of returning, when by lapse of time the memory of his transgressions shall be effaced, and the public resentment appeased.
2. In respect of equability, these punishments are really more defective than at first sight they might appear. In every condition in life, each man has his own circle of friends and acquaintance: to become an object of contempt or aversion to this society is a misfortune as great to one man as to another. This is the result that may at first view present itself to the mind, and which, to a certain extent, is really correct; it will, however, upon a more narrow scrutiny of the matter, be found, that in point of intensity this class of punishment is subject to extreme variation, depending, as it does, upon the condition in life, wealth, education, age, sex, and other circumstances: the casual evils resulting from the punishments belonging to this sanction are infinitely variable: shame depends upon sensibility.
Women, especially among civilized nations, are more alive to, and susceptible of, the impression of shame than men. From their earliest infancy, and even before they are capable of understanding the object of it, one of the most important branches of their education is, to instil into them principles of modesty and reserve; and they are not long in discovering that this guardian of their virtue is at the same time the source of their power. They are, moreover, physically weaker, and more dependent than men, and stand more in need of protection; it is more difficult for them to change their society, and to remove from the place of their abode.
At a very early age, generally speaking, sensibility to the moral sanction is not remarkably acute: in old age it becomes still more obtuse. Avarice, the only passion that is fortified by age, subdues all sense of shame.
A weak state of health, morbid irritability, any bodily defect, any natural or accidental infirmity, are circumstances that aggravate the suffering from shame, as from every other calamity.
Wealth, considered of itself, independently of rank and education, has a tendency to blunt the force of these impressions. A rich man has it in his power to change his residence; to procure fresh connexions and acquaintance, and by the help of money to purchase pleasures for which other people are dependent upon good-will. There exists a disposition to respect opulence on its own account; to bestow on the possessor of it gratuitous services, and, above all, external professions of politeness and respect.
Rank is a circumstance that augments the sensibility to all impressions that affect the honour; but the rules of honour and morality are not always calculated upon the same scale: the higher ranks are, however, in general, more alive to the influence of opinion than the inferior classes.
Profession and habitual occupation materially affect the punishments proceeding from this source. In some classes of society, the point of honour is at the very highest pitch, and any circumstance by which it is affected produces a more acute impression than any other species of shame. Courage, among military men, is an indispensable qualification: the slightest suspicion of cowardice exposes them to perpetual insults: thence, upon this point, that delicacy of feeling among men who, upon other points, are in a remarkable degree regardless of the influence of the moral sanction.
The middle ranks of society are the most virtuous: it is among them that in the greatest number of points the principles of honour coincide with the principles of utility: it is in this class also that the inconveniences arising from the forfeiture of esteem are most sensibly felt, and that the evil consequences arising from the loss of reputation produce the most serious ill consequences.
Among the poorer classes, among men who live by their daily labour, sensibility to honour is in general less acute. A day labourer, if he be industrious, though his character be not unspotted, will be at no loss for work. His companions are companions of labour, not of pleasure: from their gratuitous services he has little to expect, and as little to ask. His wants are confined to the mere necessaries of life. His wife and his children owe him obedience, and dare not withhold it. The pleasures which arise from the exercise of domestic authority fill up the short intervals of labour.
3. The greatest imperfection attending punishments arising from the moral sanction, is their want of exemplarity. Their effect, in this respect, is less than that of any of the punishments of the political sanction. When a man is exposed to suffering from loss of reputation, it may be unknown to all the world, or at least the knowledge may be confined to those who are the instruments of his punishment, and to the immediate circle of his friends and acquaintance. But these are witnesses only of a small part of his sufferings. They perceive that he is treated with indifference or disdain; they observe that he does not find protection or confidence: but all these observations are transitory. The individual, wounded by these signs of coldness or aversion, shuns the company of the authors or the witnesses of his shame; he retires to solitude, where he suffers in secret; and the more unhappy he is, the smaller is the number of the spectators of his punishment.
Punishments, connected with the moral sanction, are advantageous with reference to reformation. When a man suffers in consequence of a violation of the established rules of morality, he can only refer the evil he experiences to its true cause: the more sensible he is to shame, the more he will fear to increase it: he will become either more prudent that he may avoid detection, or more careful to save appearances; or he will in future submit to those laws which he has been unable to break without suffering. Public opinion, with the exception of a few cases, is not implacable. There is among men a reciprocal need of indulgence, and a levity and ease in forgetting instead of forgiving faults, when the remembrance of them is not renewed by fresh failures.
On the other hand, with respect to dishonourable actions for which there is neither appeal or pardon, the punishment of infamy acts as a discouragement, and not as a motive to reformation. Nemo dignitati perditæ parcit.
These disadvantages are in a measure compensated, and this sanction receives a degree of force which is often wanting in the political sanction, from the certainty of its action. There is no offending against it with impunity: an offence against one of the laws of honour, arouses all its guardians. The political tribunals are subjected to a regular process: they cannot pronounce a decision without proof, and proofs are often defective. The tribunal of public opinion possesses more liberty and more power: it is liable to be unjust in its decisions, but they are never delayed on that account; they can be reversed at pleasure. Trial and execution proceed with equal steps, without delay or necessity for pursuit. There are everywhere persons ready to judge, and to execute the judgment. This tribunal always inclines to the side of severity: its judges are interested by their vanity and their love of display in making its decisions severe; the more severe they appear, the more they flatter themselves with the possession of the good esteem of others. They seem to think that the spoliation of one character forms the riches of another. Thus, although the punishments of the moral sanction are indeterminate, and for the most part, when estimated separately, of little weight, yet by the certainty of their operation, their frequent recurrence, and their accumulation, from the number of those who have authority to inflict them, they possess a degree of force which cannot be despised by any individual, whatever may be his character, his condition, or his power.
The power exercised by the moral sanction varies according to the degree of civilization.
In civilized society there are many sources of enjoyment, and consequently many wants, which can be supplied only from considerations of reciprocal esteem: he who loses his reputation is consequently exposed to extended suffering in all these points.
The exercise of this sanction is also favoured or restrained by different circumstances. Under a popular government, it is carried to the highest degree; under a despotic government, it is reduced almost to nothing.
Easy communications, and the ready circulation of intelligence, by means of newspapers, augments the extent of this tribunal, and increases the submission of individuals to the empire of opinion.
The more unanimous the decisions of the moral sanction, the greater their force. Are its decisions different among a great number of different sects or parties, whether religious or political, they will contradict each other. Virtue and vice will not use the same common measure. Places of refuge will be found for those who have disgraced themselves, and the deserter from one sect or party will be enrolled in another.
We now come to consider the punishment of infamy, or forfeiture of reputation.* The nature of this punishment we have already had occasion to discuss, in treating of the moral sanction from which it derives its origin. All that remains for us to do in this place, is to state the various contrivances by which the political magistrate has gone about to modify its direction, and to augment its force.
In point of direction, the way in which he influences the action of this punishment is very simple. It is this: by annexing it to the commission of any act which, by prohibiting, he has constituted an offence.
In point of force, he may influence it by various means.
The methods by which this may be done may be divided, in the first place, into legislative or executive. 1st, It may be done by methods simply legislative, without any of that interference which, in the case of ordinary punishments, is necessary, of the executive power: the law in this case commits to each individual, in as far as he himself is concerned, the office of judge and executioner. 2d, But in this case, as in any other, the law may carry itself into execution in the ordinary methods of procedure; authorizing the judge, either in imitation of his predecessors, or in conformity to the letter of positive law, to direct and animate the resentment of the community at large.
By the simple exercise of the legislative office, the law may annex to any mode of conduct a certain quantity of disrepute, in the following ways:—
1. By simply prohibiting any mode of conduct, although no political penalty be also employed to enforce the prohibition. This is the lowest degree in which the political magistrate can be instrumental in applying the force of the several sanctions. This slightest exertion of the force of the moral sanction is inseparable, we see, from an exertion of that of the political. A few words may be of use on this occasion, to show to what causes it is owing that a certain share of the former of these forces is become, as it were, appurtenant to the other.
2. If no political penalty is denounced, the community find in this circumstance a stronger or additional reason for annexing their disesteem to the breach of it. For since it must be evident to the legislator, as it is to every man, that no rule can have any effect without a motive to prompt a man to observe it, his omitting to annex any other penalty is naturally understood to be a kind of tacit warning to the community at large to take the execution of the law into their own hands. All he does in such case, is to give direction to the moral sanction, trusting to its native force for the execution of his law.
3. If the ordinance be accompanied by an express exhortation to obey it, or, what comes to much the same thing, if the terms in which it is delivered savour of exhortation, this is another and more express declaration of his persuasion of the utility of the ordinance he promulgates. And the more anxious be is that it should meet with obedience, the more pernicious [it shows] he appears to deem the conduct of any one who disobeys it, or at least the more convinced he shows himself to be, that, to a certain degree at least, the non-observance of it would be pernicious to the community.*
5. A fifth expedient, by which the moral sanction is called upon in a manner still more express to enforce a political ordinance, is by censure directly levelled at him, whosoever he shall prove to be, that shall infringe it. This censure may be levelled at the offender either immediately, or else mediately, by being immediately pointed at the offence.†
6. A sixth expedient is by transferring, or at least endeavouring to transfer, upon one offence, the measure of disrepute that naturally attends upon another. The way in which this is done, is by affecting to regard the obnoxious practice in question as an evidence of another practice, on which men are already in the habit of bestowing a superior degree of disrepute.‡ It is plain that the cases in which this can be attempted with any prospect of success must necessarily be limited. To warrant the inference, some appearance in connexion, however superficial, there must be between the two offences. But any little connexion, however slight, is ordinarily sufficient. In such a case, men in general are not apt to be very difficult with regard to the evidence. The vanity of being thought sagacious, the pride of sitting in judgment and condemning, the hope of earning a certain measure of reputation on the score of virtue at an easy rate, the love of novelty and paradox, and the propensity to exaggeration, especially on the unfavourable side, second the aim of the legislator.
So much for the ways in which the political magistrate may exert an influence over the moral sanction by the bare exercise of his legislative powers: we now come to the instances in which he requires the assistance of the executive.
Of all the expedients that may be classed under this head, the least severe is that of publication— the making public the fact of the offence, accompanied with a designation of the offender. It is principally in point of extent that a measure of this sort tends to add to the natural quantum of disrepute; though something likewise may be supposed to be contributed by it in point of intensity, on account of the certainty which it gives to men’s opinions of the delinquency of the offender. Even this mode of proceeding, mild as it may appear, is capable of various degrees of severity, according to the various degrees of publicity that may be given to the fact. It may be registered in a written instrument to which few people have access; it may be registered in a written instrument to which any person may have access. It may be notified by proclamation, by sound of trumpet, by beat of drum. Since the invention of printing, it may be recorded in indelible characters, and circulated through the whole state.* It is obvious, that the discredit reflected by this expedient, must be greater or less in point of intensity, as the offence is esteemed more or less disreputable.
The censure which in the law is pronounced in general terms upon such uncertain persons as may chance to become offenders, may, upon conviction, by the assistance of the executive power, be brought home to, and personally levelled at any individual offender. And this may be done in a manner more or less public, and either in a settled form of words, or with more latitude in a speech ad libitum, to be delivered by the judge.†
But the severest expedient for inflicting infamy is that which consists in the applying of some political punishment, which, by its influence on the imaginations of mankind, is in possession of the power of producing this effect. This leads us to inquire into the different measures of infamy that stand naturally annexed to the several modes of punishment; and in the course of this inquiry we shall find reason to distinguish certain punishments from the rest, by the special epithet of infamous.
A certain degree of infamy or disrepute, we have already remarked, is what necessarily attends on every kind of political punishment. But there are some that reflect a much larger portion of infamy than others.‡ These, therefore, it is plain, are the only ones which can be stated properly by that name.
Upon looking over the list of punishments, we shall find that it is to those which come under the name of corporal punishments that this property of reflecting an extraordinary degree of infamy is almost exclusively confined. Pecuniary punishments, which are the most common, are attended with a less degree of infamy than any other, unless it be quasi-pecuniary punishments; which in this respect, as in most others, are pretty much upon a par with pecuniary. Next to these come the several modes of confinement; among which, if there be any difference, quasi imprisonment and local interdiction seem the mildest in this respect; next to them, banishment and imprisonment the severest. Of specific restraints and active punishments at large, they are so various, that it is not easy to give an account. In general, they seem to be on a footing with those punishments that are mildest in this respect, unless where, by means of analogy, they are so contrived as to reflect and aggravate in a peculiar manner the infamy of the offence.∥ The same account may be given of all the other kinds of forfeiture.
With regard to corporal punishments short of death, there is no punishment of this class but is understood to carry with it a very high degree of infamy. The degree of it, however, is not by any means in proportion to the organical pain or inconveniences that are respectively attendant upon those punishments. On the contrary, if there be any difference, it seems as if the less the quantity is which a punishment imparts, of those or any other kind of inconveniences, the greater is the quantity which it imports of infamy. The reason may be, that since it is manifest the punishment must have been designed to produce suffering in some way or other, the less it seems calculated to produce in any other way, the more manifest it is that it was for this purpose it was made choice of. Accordingly, in regard to punishments to which the highest degrees of infamy are understood to be annexed, one can scarcely find any other suffering which they produce. This is the case with several species of transient disablement; such as the punishments of the stocks, the pillory, and the carcan: and with several species of transient as well as of perpetual disfigurement; such as ignominious dresses and stigmatization. Accordingly, these modes of punishment are all of them regarded as neither more nor less than so many ways of inflicting infamy. Infamy thus produced by corporal punishments, may be styled corporal ignominy or infamy.
According as the corporal punishment that is made choice of, for the sake of producing the infamy, is temporary or perpetual, the infamy itself may be distinguished into temporary and indelible. Thus the infamy produced by the stocks, the pillory, and the carcan, is but temporary; that which is produced by an indelible stigma is perpetual. Not but that any kind of infamy, howsoever inflicted or contracted, may chance to prove perpetual; since the idea of the offence, or, what comes to the same thing, of the punishment, may very well chance to remain more or less fresh in men’s minds to the end of the delinquent’s life: but when it is produced by an indelible stigma, it cannot do otherwise than continue so long as the mark remains, whatsoever happens to him: wheresoever he goes, and how long soever he lives, he bears about him the evidence of his guilt.
Mutilation and the severer kinds of simple afflictive punishments, discolourment, disfigurement, and disablement, are all attended likewise with a very intense degree of infamy; that is, in as far as the effects produced by them are known to be produced on purpose in the way of punishment. But with regard to many of the sorts of punishment that come under the three latter heads, as the effects of them are, upon the face of them, no other than might have been produced by accident, they are therefore the less certain of producing the effect of infamy. The infamy produced by these punishments is, in point of duration, of a mixed nature, as it were, between temporary and perpetual. At the time of the execution, it stands upon a par in this respect with the pillory or the stocks, with whipping or any other kind of simple afflictive punishments: after that time, it is greater than what is produced by any of these punishments, because the visible consequences still continue: it is not, however, so great as what is produced by stigmatization, because it does not of itself, like that galling punishment, make known the guilt of the delinquent to strangers at the first glance.
Nearly allied to corporal infamy are two other species of infamy, which, as they derive their influence altogether from that which is possessed by corporal infamy, may be styled quasi-corporal. The one is inflicted by an application made, instead of to a man’s body, to some object, the idea of which, by the principle of association, has the effect of suggesting to the imagination the idea of a punishment applied actually to the body itself. This, inasmuch as it operates by the force of symbols or emblems, may be styled symbolical or emblematical corporal infamy.* The other is inflicted by a punishment applied, indeed, to the body, but not till after it has ceased to be susceptible of punishment — I mean, not till after death: this may be styled posthumous or post-obitory corporal infamy.†
To the head of forfeiture of reputation, must be referred a forfeiture of a very particular kind — forfeiture of credibility; that is, in effect, forfeiture of so much of a man’s reputation as depends upon the opinion of his veracity. The effect of this punishment (as far as it can be carried into effect) is to cause people to bestow on the delinquent that share of ill-will which they are naturally disposed to bear to a man whose word they look upon as not being to be depended upon for true.
This punishment is a remarkable instance of the empire attempted, and not unsuccessfully, to be exercised by the political magistrate over the moral sanction. Application is made to the executors of that sanction, that is, the public at large, to bestow on the delinquent not so much of their disesteem in general, nor yet so much of their disesteem as they are disposed to annex to some particular offence of which he has been found guilty, but such a share as they are disposed to annex to another offence of which he has not been proved guilty, and which, unless by accident, has no connexion with that of which he has actually been proved guilty.
The method, too, which is taken to inflict this punishment, is equally remarkable. It is inflicted, not by any restraint or other punishment applied to the delinquent, but by a restraint laid upon another person — a judge; or by an inconvenience which may be of any kind whatsoever, thrown (as the case may require) upon any person whatsoever. The judge is forbidden to interrogate him, or to permit him to be interrogated as a witness in any cause, as also to pay any regard, on any such occasion, to any instrument purporting to contain his written attestation. The party who may have stood in need of his evidence, for the preservation of his life, liberty, or fortune; or the public, who may have stood in need of it to warrant the punishment, and guard itself against the enterprises of another, perhaps more atrocious, criminal, are precluded from that benefit.
I know not of any instance in which it is absolutely clear that a man has been made to incur this singular kind of forfeiture in the express view of punishment. In all the cases in which it has been adopted, it is not impossible but that the restraint which it imports may have been imposed in no other view than that of improving the rules of evidence, and guiding the judge against error in his decision upon the questions of fact brought before him.
Be this as it may, it is certain that in the English law it stands annexed, in many instances, to offences which have not the remotest connexion with the veracity or mendacity of the offender.*
To this head also must be referred the punishment of forfeiture of rank, otherwise entitled degradation. For the purpose of understanding this modification of ignominious punishment, reputation must be distinguished into natural or ordinary, and factitious or extraordinary. By natural share of reputation and good-will, I mean that which each man possesses in virtue of his own personal conduct and behaviour: by factitious, I mean that extraordinary share of these possessions which, independently of a man’s personal conduct, is bestowed on him by the institution and contrivance of the political magistrate.
This kind of factitious reputation is commonly annexed to office or employment; but it sometimes exists by itself. This is the case, for instance, in England, with the ranks of gentlemen, esquire, knight, and baronet, and the ranks derived from academical degrees.
Rank may be conferred either by custom or by authority. When derived from custom, it is annexed either to family or to occupation: when derived from authority, it is annexed to the person. But whether it were conferred by authority or no, it is in the power of authority to diminish the reputation belonging to it, if not wholly to take it away. A sentence of a judge, degrading a man from the rank of gentleman, cannot cause a man not to have been born of a father that was a gentleman, but it may divest him of a greater or less share of that respect which men were disposed before to pay him on that account.
As to the mode of inflicting degradation, it may be inflicted by any process that serves to express the will of the magistrate, that the delinquent be no longer considered as possessing the rank in question, with or without corporal ignominy.
Degradation, did it answer precisely to the definition given of it, when it is styled forfeiture of rank, should take away from a man that precise quantity of reputation, and consequently of good offices, and consequently of happiness, for which he stands indebted to his rank. But as these quantities are incapable of being measured, or even estimated with any tolerable degree of exactness, the punishment of degradation can never with any certainty be made to answer precisely to such definition. It seems probable, that a man who has once been possessed of a certain rank, can never be totally deprived of all the reputation, respect, and good offices that are commonly rendered to that rank: the imaginations of mankind are too stubborn to yield instant and perfect obedience to the nod of power. It seems probable, notwithstanding, that the condition of a man who has undergone a degradation of rank, is thereby commonly rendered worse upon the whole than if he had never been possessed of it; because, in general, simply not to possess, is not so bad as, having possessed, to lose. To speak with more precision, it should seem that the characteristic pain of the moral sanction produced by such a punishment, is in general more than equivalent to the sum of such of the casual benefits of that sanction as the punishment fails to take away.
It is common enough to speak of a total loss of reputation; and some jurists speak of such a loss as if it could easily be, and were frequently incurred. But such a notion is not compatible with any precise idea of the import of that term. To understand this, it will be necessary to conceive in idea a certain average or mean quantity of reputation equal to zero, from whence degrees of good reputation may be reckoned on one side, and of bad reputation on the other. This mean quantity of reputation, or good-will, call that which any given member of the community may be deemed to possess, who has no rank, and who either has neither merits nor demerits, if such a human being be conceivable, or rather, whose merits stand exactly upon a level with his demerits. All above this average quantity may be styled good reputation, all below it bad reputation. In one sense, then, a total forfeiture of reputation should consist of nothing more than a total forfeiture of good reputation, as thus defined. Now then, according to this account of the matter, a total forfeiture of reputation would be nothing more than what is very possible, and indeed must be very frequent. But it is plain that this is not what the jurists, nor indeed what persons in general, in speaking of a total forfeiture of reputation, have in view. For all that this would amount to, would be the reducing the delinquent to a level with a man of ordinary merit and condition: it would not put his reputation upon so low a footing as that to which a man of ordinary merit and reputation would be reduced by the slightest instance of moral or political delinquency. What they have in view is the acquisition, if one may so term it, of a certain share of ill reputation, the quantity of which they view in a confused manner, as if it were determinate, and consisted of all the ill reputation a man could possibly acquire. But this, it is plain, it never can do, at least in the cases to which they apply it. For they speak of such an event as if it could be, and commonly were, the effect of a single instance of delinquency; for instance, a robbery or ordinary murder. This, it is plain, it can never be, unless it should be maintained that an act of parricide, for example, would not make a man worse looked upon than he was before, after having committed only a robbery or ordinary murder. It is plain that the maximum of bad, as well as that of good reputation, is an infinite quantity, and that in this sense there is no such thing within the sphere of real life as a total forfeiture of reputation.
The infliction of ignominious punishment is an appeal to the tribunal of the public — an invitation to the people to treat the offender with contempt, to withdraw from him their esteem. It is (to speak in figurative language) a bill drawn upon the people for so much of their ill-will as they shall think proper to bestow. If they look upon him in a less favourable light than they would otherwise, the draft is honoured: if they do not, it is protested, and the charge is very apt to fall upon the drawer. Ignominious punishments are like those engines which are apt to recoil, and often wound the hand that unadroitly uses them.
But if skilfully managed, what important services may they not be made to render! The legislator, by calling in to his aid, and trusting to the moral sanction, increases its power and the extent of its influence: and when he declares that the loss of honour is to be considered as a severe punishment, he gives to it in the eyes of every man an additional value.*
1. This species of punishment, so far as it goes, is not without some commodious properties: it is variable in quantity, from the paternal admonition of the judge, to a high degree of infamy. Accompanied with more or less publicity, with various circumstances of disgrace and humiliation, the legislator may proportion the punishment to the malignity of the offence, and adapt it to the various circumstances of age, rank, sex, and profession. Every station in life will, for this purpose, afford facilities that are peculiar to it, and in particular the military.
In point of variability, punishments of this kind have an advantage over every other mode of punishment. This quality is desirable in a mode of punishment, that it may be capable of being made to bear a due proportion to every offence to which it is annexed. With regard to all other kinds of punishments that are constituted solely by the law, the proportion must be settled by the law; whereas this mode has a tendency to fall into that proportion of itself. The magistrate pronounces — the people execute. The people, that is, as many of the people as think proper: they execute it, that is, in whatever proportion they think proper. The malignity towards the delinquent is in general proportionate to the malignancy of his offence. It is not, however, like corporat punishment, capable of being universally applied to all offences. In many cases, an offence may be productive of real mischief, but a mischief which the people, the executioners of this mode of punishment, are not qualified to perceive. On this part of the subject we shall have occasion to speak further presently.
2. In point of exemplarity, this mode of punishment cannot be excelled. Whatever it is that a man suffers by the publication of his offence, whether by degradation or by being subject to ignominious exposure, it is evident that he suffers it from the infamy attached to his character under the sanction of the legislator.
3. In point of frugality, it is advantageous enough. The mischief apprehended from the ill-will annexed to a disreputable act, bears, I suppose, at least as high a ratio to the eventual mischief, as the mischief apprehended from any other mode of punishment does to the eventual.
4. In point of popularity it cannot be excelled. For what objection can the people have to a man’s being punished in this manner, when all that is done to him is the giving them notice that within the bounds which the law allows, they themselves may punish him as they please — when they themselves are both judges and executioners?
5. They are remissible. An erroneous sentence may be annulled. A greater degree of notoriety may be given to the justification, than accompanied the condemnation. The stain that had been thus affixed on his character will not only be completely effaced, but the supposed offender, from the unjust persecution that he will have undergone, will become a general object of sympathy, and especially to those who have been instrumental in inflicting the punishment.
What is more, even though justly inflicted, the patient, by the stimulus he will have received, may be excited to exertions to recover the esteem he has lost, and to earn fresh honours to hide his disgrace. In the army it has happened that whole bodies of troops, after having been stigmatized by their officers, have atoned for their offence by distinguished acts of valour, and have received the highest marks of honour.
This advantage is not possessed by ignominious corporal punishments: the stain that they leave is indelible; and unless the patient expatriates himself, his lost reputation is irrecoverable.
Having thus stated the properties that belong to punishments of this kind, we proceed to notice a difficulty which arises in their application, and which is peculiar to them. The legislator cannot at pleasure attach to any given species of offence the degree of infamy that he may be desirous of affixing to it. There are some classes of offences really detrimental to the country, such, for example, as election bribery and smuggling, for the punishing of which the legislator has no means of pressing the great bulk of the people into the service. Upon other points, the popular sentiments are in direct opposition to those of the legislature: there are others, on which they are wavering, neutral, or too feeble to serve his purpose. The case of duelling may serve as an example.
“So far,” says Rousseau, “is the censorial tribunal from leading the public opinion, it follows it: and when it departs from it, its decisions are vain and nugatory.”*
Be it so: but what follows from this? Is it that the legislator is to be the slave of the most mischievous and erroneous popular notions? No: this would be to quit the helm, while the vessel was surrounded with rocks. His greatest difficulty will consist in conciliating the public opinion, in correcting it when erroneous, and in giving it that bent which shall be most favourable to produce obedience to his mandates.
The legislator is in an eminent degree possessed of the means of guiding public opinion. The power with which he is invested gives to his instructions, whenever he may bestow them, far greater weight than would be attributed to them if falling from a private individual. The public, generally speaking, presumes that the Government has at its command, more completely than any private man, the requisite sources of information. It is presumed also, that in the great majority of cases its interest is the same with that of the people, and that it is unbiassed by personal interest, which is so apt to misguide the opinion of individuals. If things go on unprosperously, the responsible agents become subject to the animadversion of the public; if prosperously, they have the credit and the advantage. Of this, people in general have a confused notion, and it is the ground of their confidence.
In extirpating prejudices that appear to him to be mischievous, the legislator has the means of laying the axe to the root of the evil. He may form institutions which, without inculcating doctrines in direct repugnance to received opinions, may indirectly attack them. Instead of planting against them a battery, he may sink a mine beneath them, the effect of which will be infallible.
The legislator is clothed not only with political, but with moral power. It is what is commonly expressed by the words consideration, respect, confidence. There are not wanting instances in which, by means of such instruments, the most important effects have been produced.
A certain degree of infamy, it is obvious, must naturally result upon a conviction for any offence which the community are accustomed to mark with their displeasure: thus much results from the bare conviction, indeed from the bare detection, without any express designation of the magistrate. The only way, therefore, in which the magistrate can produce any additional degree of infamy — I mean all along pure and simple infamy — is by taking extraordinary measures to make public the fact of the offence. In this way it is only in point of extent that the magistrate adds to the actual portion of infamy that flows from the offence.
In point of intensity, there is but one way in which the law can contribute anything to the infliction of simple infamy. This is by bestowing on the act in question some opprobrious appellation — some epithet, calculated to express ill-will or contempt on the part of him who uses it. Thus, a legislator of ancient Rome (in a passage of Livy, quoted by the Author of Principles of Penal Law,* ) after describing a particular mode of offence, is said to have done nothing more towards punishing it, than by subjoining these words, improbè factum. Here the legislator begins the song of obloquy, expecting that the people will follow in chorus. The delinquent is to be pelted with invectives, and the legislator begins and casts the first stone.
But when the object of the legislator is to conciliate the public opinion, and especially when that opinion is opposite to the one he would establish, he must address himself to their reason.
I hope it will not be supposed that, under the name of reasons, I have here in view those effusions of legislative babbling — those old-womanish aphorisms, mocking the discernment of the people, degrading the dignity of the legislature, which stuff up and disgrace the preambles of our statute-books: “Whereas it has been found inconvenient — Whereas great mischiefs have arisen,”— as if it were endurable that a legislator should prohibit a practice which he did not think “inconvenient,” which he did not think “mischievous,” and as if, without his saying as much, the people would not give him credit for wishing that it might be believed he thought it.
Of what sort, then, should the reasons be, which the legislator ought to employ to back and justify an epithet of reproach? They should be such as may serve to indicate the particular way in which the practice in question is thought liable to do mischief; and by that means point out the analogy there is between that practice, and those other practices, more obviously, but perhaps not more intensely mischievous, to which the people are already disposed to annex their disapprobation. Such reasons, if reasons are to be given, should be simple and significant, that they may instruct — energetic, that they may strike — short, that they may be remembered.
Take the following as an example in the case of smuggling:—Whosoever deals with smugglers, let him be infamous. He who buys uncustomed goods, defrauds the public of the value of the duty. By him the public purse suffers as much as if he had stolen the same sum out of the public treasury. He who defrauds the public purse, defrauds every member of the community.†
As the legislator may lay the hand of reproach upon him who counteracts the purposes of the law, so may he take it off from him who forwards them. Such is the informer — a sort of man on whose name the short-sightedness and prejudice of the people, inflamed by the laws themselves, have most undeservedly cast an odium. The informer’s law might be prefaced in the following manner:
It is the artifice of bad men to seek to draw contempt upon them who, by executing the laws, would be a check upon their misdeeds. If the law is just, as it ought to be, the informer is the enemy of no man, but in proportion as that man is an enemy to the rest. In proportion as a man loves his country, he will be active in bringing to justice all those who, by the breach of the laws, entrench on its prosperity.
It will be remarked, that in this new part of the law — in this struggle to be made against the errors of the moral sanction — there is work for the dramatist as well as the legislator, or else, that the politician should add somewhat of the spirit of the dramatist to all the information of the lawyer. Thus wrote the legislators of ancient days — men who spoke the significant and enchanting language of Ancient Greece. Poetry was invited to the aid of law. No man had ever yet thought of addressing the people in the barbarous language that disgraces our statute-book, where the will of the legislator is drowned in a sea of words. Habited in a Gothic accoutrement of antiquated phrases, useless repetitions, incomplete specifications, entangled and never-ending sentences, he may merely, from incomprehensibility, inspire terror, but cannot command respect. It may be matter of astonishment, why the arbiters of our life and of our property, instead of disporting themselves in this grotesque and abject garb, cannot express themselves with clearness, with dignity, and with precision: the best laws would be disfigured if clothed in such language.
“In a moderate and virtuous government,” says an elegant and admired writer, “the idea of shame will follow the finger of law.”
Yes, so as his finger be not so employed as to counteract and irritate the determined affections of the people. He goes on and says, “Whatever species of punishment is pointed out as infamous, will have the effect of infamy.” True, whatever is appointed by the legislator as a mark to signify his having annexed his disapprobation to any particular mode of conduct, will have this effect: it will make the people sensible that he wishes to be thought to disapprove of that mode of conduct; in most cases, that he does really disapprove of it. But to say, that whatever the legislature professes to disapprove of, the people will disapprove of too, is, I doubt, going a degree too far.
We may direct his attention to an instance of an offence which, under as moderate and virtuous a government, I dare believe (all prejudices apart,) as ever yet existed, laws have rendered penal, magistrates have endeavoured to render infamous, by a punishment which in general marks the patient with infamy, but which no laws, no magistrates, no punishments, will in this country ever render infamous. I mean state-libelling.
The offence of libelling, as marked out by the law as it stands at present, is this: it is the publishing, respecting any man, anything that he does not like. This being the offence of libelling in general, the offence of state-libelling is the publishing, respecting a man in power, anything which he does not like.
A libel is either criminative or vituperative. By criminative, I mean such an one as charges a man with having done a specific act (determinable by time and place,) of the number of those that are made punishable by law. By vituperative, simply vituperative, I mean such an one as, without charging a man with any specific fact, does no more than intimate, in terms more or less forcible, the disapprobation in which the libeller holds the general conduct or character of the party libelled. Such are all those epithets of vague reproach — liar, fool, knave, wicked profligate, abandoned man, and so forth; together with all those compositions which, in the compass of a line, or of a volume, intimate the same thing. A criminative libel, therefore, is one thing: a vituperative is another. The law knows not of these terms; but it acknowledges the distinction they are here intended to express.
Of these two, a libel of the criminative kind admits, we may observe, of another much more confined and determinate definition: a vituperative libel will admit of no other than that which is given above.
Now then, so it is, that for a libel simply vituperative, against a private person, the law will not let a man be punished by what is called an action to the profit of the party, unless it be under particular circumstances, which it is not here the place to dwell upon. But by imprisonment, or to the profit of the crown, by what is called an indictment, or more especially what is called an information, it will let him be punished at the caprice, (for no rules are or can be laid down to guide discretion)— at the caprice, I say, and fancy of the judges. For a libel of the criminative kind, against a private person, the law will not let a man be punished, if the libeller can prove his charge to be a true one. But for a libel against a man in power, criminative or vituperative, true or false, moderate or immoderate, it makes a man punishable at all events, without distinction. If it be true, it is so much the worse: judges, thinking to confound reasoning by paradox, have not scrupled to hazard this atrocious absurdity. The judges of antiquity broached it long ago; succeeding judges have adhered to it; present judges, whose discernment cannot but have detected it — present judges, as if borne down by the irresistible weight of authorities, recognise it, and it triumphs to this hour.
This being the case, he who blames the proceedings of a man in power, justly or unjustly, is a libeller: the more justly, the worse libeller. But for blaming the proceedings of men in power, and as they think justly, never will the people of this country look upon a man as infamous. Lawyers may harangue, juries may convict; but neither those juries, nor even those lawyers, will in their hearts look upon him as infamous.*
The practical conclusion resulting from this is, that the legislator ought never directly to oppose the public opinion by his measures, by endeavouring to fix a stain of ignominy upon an act of the description of those in question, which are equally liable to originate in the most virtuous as in the most vicious motives, and which consequently escape general reprobation.
But it is not less true, that in a very extensive class of cases, an argument addressed to the understandings and sentiments of the people, would, if properly applied, have some considerable effect, as well as an argument addressed to their fears. If he thought the experiment worth trying, the legislator might do something by the opinion of his probity and his wisdom, and not be forced to do everything by the terror of his power. As he creates the political sanction, so he might lead the moral. The people, even in this country, are by no means ill-disposed to imagine great knowledge where they behold great power. A few kind words, such as the heart of a good legislator will furnish without effort, will, if the substance of the law be not at variance with them, be enough to dispose the people to be not uncharitable in their opinion of his benevolence.
Not that the legislator in our days, and in those countries which, on the subject of government, one has principally in view, ought to expect to possess altogether the same influence over the moral sanction as was exercised by the legislators of such small states as those of Greece and Italy in the first dawnings of society. The most prominent reason of this difference is, that in monarchical governments it is birth, and not any personal qualifications, that fix a man in this office. It is rare that the person in whose name laws are issued, is the person who is believed to make them. It is one thing to make laws, and another to touch them with a sceptre.
The Catherines and Gustavuses govern, and are seen to do so. Other princes are either openly governed, or, locking up their bosoms from the people, reign as it were by stealth.
In a mixed government like our’s, where the sovereign is a body, he has no personal character. He shows himself to the people only in his compositions, which are all that is known of him. By those writings he may doubtless give some idea of his character. But as his person is in a manner fictitious and invisible, it is not to be expected that the idea of his character should make so strong an impression upon the imagination of the people, as if they had the idea of this or that person to connect it with.
In the small states of Greece, the business of legislation stood upon a very different footing. The Zalencuses, the Solons, the Lycurguses, were the most popular men in their respective states. It was from their popularity, and nothing else, that they derived their title. They were philosophers and moralists, as well as legislators: their laws had as much of instruction in them as of coercion; as much of lectures as of commands. The respect of the people had already placed the power of the moral sanction in their hands, before they were invested with the means of giving direction to the political. Members of a small state, the people of which lived as if they were but one family, they were better known to the whole people for whom they made laws, than with us a Member ordinarily is by the people of the county he is chosen for.
In those days, men seem to have been more under the government of opinion than at present. The word of this or that man, whom they knew and reverenced, would go further with them than at present. Not that their passions, as it should seem, were more obsequious to reason; but their reason was more obsequious to the reason of a single man. A little learning, or the appearance of it, gleaned from foreign nations, gave a man an advantage over the rest, which no possible superiority of learning could give a man at present. Ipse dixit is an expression that took its rise from the blind obsequiousness of the disciples of Pythagoras, and not uncharacteristic of the manner of thinking of those who pretended to make any use of their thinking faculty throughout ancient Greece.*
We now come to consider the several kinds of Forfeitures; and, first, the sorts of forfeiture that bear the name of pecuniary and quasi-pecuniary: forfeiture of money, and what is exchangeable for money.
A pecuniary forfeiture is incurred when a man is, by a judicial sentence, compelled to pay a sum of money to another, or, as it is in some cases called, a fine.
As to the methods which may be taken by the law to inflict a punishment of this sort, they are as follows:—
1. The simplest course is to take a sum of money, to the amount in question, out of the physical possession of the delinquent, and transfer it into the physical possession of the person who is to receive it; after which, were he to meddle again with the money so taken, he would be punished just as if he had meddled with any other parcel of money that never was in his possession. This course can only be taken when it happens to be known that the delinquent has such a sum in his possession, and where it lies. But this is seldom the case.
2. The next and more common expedient is to take such and such a quantity of what other corporal effects he may have in his physical possession, as, if sold, will produce the sum in question, and to make sale of them accordingly, and bestow the produce as before.
3. Another expedient is, to make use of compulsive means to oblige him to produce the sum himself. These means will be either, 1st, The subjecting him to a present punishment, to be taken off as soon as he has done the thing required; or, 2d, The threatening him with some future punishment, to be applied at such or such a time, in case of his not having done by that time the thing required.
4. A fourth expedient is, to take such property of his, whether in money or other effects, or whereof, though the legal right to them, or in a certain sense the legal possession of them, is in him, the physical possession is in other people. As the existence of such legal right, and the place where the effects in question are deposited, are circumstances that can seldom be known but by his means, this makes it necessary to apply compulsion to him, to oblige him to give the requisite information.
Of these four expedients, the first and second commonly go together, and are put in practice indiscriminately at one and the same operation. The officer to whom the business is entrusted, if he finds money enough, takes money; if not, he takes other effects to make up the deficiency. The first, then, may, in future, be considered as included under the second.
In England, the second and the third have both of them been in practice from time immemorial: not indiscriminately, however, but according to the name that has been given to the punishment by which the money has been exacted. When this punishment has been called a fine, the third method has been exclusively employed: when it has been called damages, the second and third have been employed together — not, indeed, in their full force, but under certain restrictions, too particular to be here insisted on.
The fourth is comparatively of late invention. It was first applied to traders by one one of the bankrupt laws, and has since been extended by the insolvent acts to persons at large, where the obligation they are under to pay money bears the name of debt. Such is the case in many instances where that obligation is imposed with a view to punishment.
1. As to the evils produced by a punishment of this kind, they are all reducible to the pain of privation occasioned by the loss of so much money.*
2. Pecuniary forfeiture shares with penal servitude in the striking advantage of being convertible to profit.
The quantity of profit is not limited in this case as in that. This is its peculiar excellence; and this it is that adapts it particularly to the purpose of compensation.
3. In respect of equality, it is not less advantageous. No punishment can be made to sit more equally than this can be made to sit on different individuals; so as the quantum of it be proportioned to the means which the delinquent has of bearing it. For money (that is, the ratio of a given sum of money to the total sum of a man’s capital) we have already shown to be the most accurate measure of the quantity of pain or pleasure a man can be made to receive. The pleasures which two men will be deprived of, by being made to lose each a given part (suppose a tenth) of their respective fortunes, will in specie perhaps be very different; but this does not hinder but that, on taking into the account quantity on the one hand, and actual expectations and probable burthens on the other, they may be the same: they will be the same as nearly as any two quantities can be made to be so by any rule of measuring. It is from his money that a man derives the main part of his pleasures; the only part that lies open to estimation. The supposition we are forced to follow is, that the quantities of pleasure men are capable of purchasing with their respective capitals are respectively equal. This supposition is, it must be supposed, very loose indeed, and inaccurate, because the quantity of a man’s capital is subject to infinite fluctuations, and because there is great reason to suppose that a richer man is apt to be happier, upon an average than a poorer man. It is, however, after all, nearer to the truth than any other general suppositions that for the purpose in question can be made.
4. In point of variability, it is evident nothing can excel this mode of punishment, as far as it extends. It commences at the very bottom of the scale. In this respect it has greatly the advantage over corporal punishments, which are always complicated with a certain degree of infamy; while in the instance of pecuniary punishments, no other infamy is produced than what is necessarily attached to the offence.
5. In respect of frugality. Pecuniary punishment, especially when the relative quantum of it is great, is liable to a disadvantage which balances in some degree against the advantage which it has of being convertible to profit. Along with the delinquent, other parties who are innocent are exposed to suffer; to wit, whatever persons were comprised within the circle of his dependents. This suffering is not the mere pain of sympathy, grounded on the observation of his suffering: if it were, there would be no reason for making mention of it as belonging in a more especial manner to the present mode of punishment. It is an original pain, produced by a consciousness of the loss which they themselves are likely to incur by the impoverishment of their principal. This evil, again, is not a mere negative evil; the evil which consists in the not being to have the comforts which, had it not been for his impoverishment, they would have had. If it were, there could be no more reason for taking it into the account on this occasion, than the pain of sympathy; for, whatever it be, it is balanced, and that exactly, by the pleasure that goes to those persons, whosoever they be, to whose profit the money is applied. The pleasure resulting from the use of that money is neither diminished nor increased by the operation: it only changes hands. The pain, then, that is peculiar to this species of punishment, is neither more nor less than the pain of disappointment produced by the destruction of those expectations which the parties in question had been accustomed to entertain, of continuing to participate in the fortune of their principal, in a measure proportioned to that in which they had been accustomed to participate in it.
6. In point of exemplarity, it has nothing in particular to boast of. At the execution of it, no spectacle is exhibited: the transfer of a sum of money on this account has nothing to distinguish it from the case of an ordinary payment. It is not furnished with any of those symbolical helps to exemplarity which belong to most punishments of the corporal kind. Upon the face of the description, the exemplarity it possesses is in proportion to the quantum of it; that is, in the ratio of the quantum of the forfeiture to the capital of him whom it is to affect.
There is one case, however, in which it is particularly deficient in this article: this is when it is laid on under the shape of costs. Upon the face of the law, nothing occurs from whence any adequate idea can be drawn of what eventually turns out to be the quantum of the punishment.
7. In point of remissibility, it is in an eminent degree advantageous. Under no other mode of punishment can reparation be made for an unjust sentence with equal facility.
8. In point of popularity, this punishment exceeds every other. It is the only one of any consequence against which some objection or other of the popular cast has not been made.
9. In point of quantity, pecuniary forfeitures are susceptible of varieties which may have considerable influence on their effects.
The quantum of such a forfeiture, as inflicted by statute or common law, may be either discretionary or indeterminate; or if determinate, it may be either limited or fixed: and in either case, it may be determined either absolutely or by reference. In the latter case, with regard to the standards by which it is determined, it would manifestly be in vain to attempt to set any bounds to their variety. The circumstances most commonly made choice of for this purpose are — 1. The profit of the offence; 2. The value of the thing which is the subject-matter of the offence; 3. The amount of the injury; 4. The fortune of the offender.
In England, a punishment of this kind is known in different cases by different names, which have nothing to do with the nature of the punishment (that is, of the suffering) itself, nor essentially with the manner in which it is inflicted. They are taken only from the accidental circumstance of the manner in which the produce of the punishment is disposed of.
When this produce is given to the king or his grantee, the punishment being left unlimited by the legislature, after the quantum of it has been settled by a judge, it is called Fine.
When, after being limited by the legislature, it has been settled by the judge, the name employed to denote it by, howsoever applied, has commonly been the general term of Forfeiture.
When the quantum of it has been left unlimited by the legislature, and the produce of it given to a party injured by the offence, the punishment is called Damages. In this case, the settling of the quantum has generally been committed to a jury.
By quasi-pecuniary forfeitures, I mean the forfeitures of any kind of property that is not money, but is of such a nature as admits of its being exchanged for money.
The enumeration of the different species of property belongs more to a treatise upon civil law, than to a work upon punishments. As many species of property, so many species of forfeiture.
The observations we have made upon pecuniary punishments may in general be applied to quasi-pecuniary punishments. The evil produced by their infliction may be estimated according to the pecuniary value lost; but there is one exception to be made with respect to objects possessing a value in affection. An equivalent in money will not represent any of the pleasures attached to these objects. The loss of patrimonial lands, of the house which has passed from father to son in the same family, ought not to be estimated at the price for which those lands or that house would sell.
Punishments of this kind are in general more exemplary than pecuniary punishments. The confiscation of lands, of a manor, for instance, more visibly bears the marks of a punishment, attracts the attention of a greater number of persons, than a fine of the same or of a greater value. The fact of the possession is a fact known through all the district — a fact of which the recollection must be recalled by a thousand circumstances, and perpetuated from generation to generation.
These considerations open a vast field for reflection, upon the use of confiscations of territorial property, especially in the case of those equivocal crimes called rebellions or civil wars. They perpetuate recollections which ought to be effaced. We shall recur to this subject when we speak of Punishments misplaced.— Book IV.
When the property under consideration consists of a real tangible entity, as a house or lands, it presents itself under its most simple and intelligible shape: but when it is of an incorporeal nature, it can only be designated by abstract terms; and to explain those terms it is necessary to have recourse to those real entities from which those fictitious entities derive their name and their signification. In order to explain the nature of any particular condition in life, for example that of husband, it is necessary to state the right conferred upon him by the law, over the person, the property, and the services of an existent being — the woman to whom he is married. To explain the nature of rank, it is necessary to explain the rights that it confers — the exclusive privilege of using a certain title, of being habited in a particular manner, of being entitled to priority upon certain occasions; in short, to enjoy such honours as are attached to the particular rank in question. So far the effect produced is produced by the operation of the law. As to the honour itself, which is the source of their value, it depends upon the moral sanction. It is, however, a species of property. A man invested with a certain rank is entitled to receive from persons at large unexigible services, services of respect, and which will be generally rendered to him in consideration of his rank.
In respect of offices— public offices — we may point out the power possessed by the person holding them over his subordinates, the emoluments that are attached to them, and the unexigible services that may result from the possession of them; that is to say, benefits resulting from the disposition that may be supposed to be felt by persons at large to render services to a man placed in an official station.
By the same process we may explain the nature of all rights; for example, the right of voting in a parliamentary election. Every person in possession of this right has the privilege of giving a vote, by which he influences the choice of the person to be vested with a particular species of power. The value of this interest, under the present state of things, consists principally in giving the elector a certain power over the candidate and his friends. An honest and independent exercise of this right is a means of acquiring reputation. To generous and benevolent minds there also accrues from it a pleasure of sympathy, founded on the prospect of public happiness, that is to say, upon the influence that the choice of a virtuous and enlightened candidate may have upon the public welfare.
The value of a condition in life, of a right, of a privilege, being explained to consist in power, profit, and reputation, that is to say, the pleasures resulting from the possession of it, we are in possession of all the necessary elements for estimating the evil accruing from their loss, or, in other words, the magnitude of the punishment occasioned by their forfeiture.
To give an analytical view of all the modifications of which property is susceptible, and every species of forfeiture to which it may be exposed, would be a work of almost endless labour. We shall content ourselves here with giving a few examples, beginning with,
The evils liable to be experienced by the husband from the forfeiture of this condition, consist in the loss of the pleasures belonging to it.
1. The pleasures which are the principal objects in the institution of marriage, may be divided into — 1st, Pleasures of sense; and 2d, Pleasures proceeding from the perception of an agreeable object, which depends partly on the senses, and partly on the imagination.
2. The innumerable minor pleasures of all kinds resulting from those inexigible services which belong to a husband’s authority. Notwithstanding their variety, they may be all of them comprised under the head of pleasures of possession.
3. The pleasures resulting from the use of the property derived from the wife: these belong to the same head as the preceding.
4. Where the wife has separate property, over which a power of disposal is reserved to her, pleasure resulting from the hope of becoming possessed of this part of her property. Pleasure of expectation founded on the pleasures derivable from the possession of wealth.
5. The pleasure resulting from the persuasion of being beloved — this affection producing a variety of uncompellable services, which have all the charms of appearing to be as spontaneous as those that are the result of friendship. These pleasures may be referred to the pleasures of the moral sanction.
6. The pleasure resulting from the good repute of the wife, which is reflected upon the husband, and which has a natural tendency, as honour derived from any other source, to conciliate to him the esteem and good-will of persons in general. This may also be referred to the pleasures arising from the moral sanction.
7. The pleasure of witnessing her happiness, and especially that part of it which he is most instrumental in producing. This is the pleasure of benevolence or good-will.
8. The pleasure resulting from the several uncompellable services received at the hands of the family of which he has become a member. This may be referred to the pleasures of the moral sanction.
9. The pleasure of power, considered generally, independently of any particular use that may be made of it, with which he is invested, in virtue of the exclusive controul he possesses over the fund for reward and punishment. This may be referred to the pleasures of the imagination.
10. The pleasure resulting from the condition of father. This we shall have occasion to notice in considering the evils resulting from the forfeiture of the condition of father.
This same catalogue, with such slight variations as the reader will find no difficulty in making, is applicable to the condition of wife.
The task of coolly analyzing and classifying feelings of this nature may appear tedious, but it is not the less necessary, if we would estimate the amount of evil resulting from the loss of this condition.
The evils resulting from the forfeiture of the condition of father may be referred most of them to the loss of the following pleasures:—
1. The pleasures derived from the imagining his own existence perpetuated in that of his child. This is a pleasure of the imagination.
2. The pleasure of having at his command, during the child’s minority, the services that he may be in a condition to render. This is a pleasure of power.
3. The pleasure of employing, in so far as it can be done without diminution, the separate property of this child. This is a pleasure referable to two sources — that of father, and of guardian (of which presently.)
4. The pleasure of filial affection — a pleasure of the moral sanction.
5. The pleasure reflected upon him by the good repute of his child. This also is a pleasure of the moral sanction.
6. The pleasure of advancing the happiness of his child — pleasure of benevolence or goodwill.
7. The pleasure derived from the several inexigible services that he may hope to receive from the connexions that his son, as he grows up, may form in the world — pleasure of the moral sanction.
8. The pleasure resulting from the sentiment of paternal power. This is a pleasure of the imagination.
9. In some cases, the pleasure derived from the expectation of becoming possessed of the whole or a part of the property the child may have acquired, or in case of his death the actual possession of such property. Pleasure, in the one case, of expectation founded on the pleasures derivable from the possession of wealth; in the other case, from the actual possession of wealth.
Pleasures belonging to the condition of child:—
1. The pleasure derived from the use of the exigible services of the parent.
2. The pleasure resulting from the power of using certain parts of the property belonging to the father.
3. The pleasure resulting from the persuasion of being beloved by him.
4. The pleasure derived from the good repute of the father, which is reflected upon the child.
5. The pleasure of witnessing the father’s happiness, and of contributing to promote it; a pleasure rendered more vivid by being accompanied with sentiments of gratitude.
6. The pleasure resulting from the connexions of the father, and the right he may have to certain services at their hands.
7. The pleasure derived from the hope of inheriting the whole or a part of his father’s property; or if he be dead, from the possession of the property.
The pleasures resulting from standing in the condition of trustee, are the following:—
1. The pleasure resulting from the hope of contributing to the happiness of the individual whose interest is in question. This is a pleasure of benevolence or good-will.
2. The pleasure derived from the hope of the inexigible services to be expected from the gratitude of the individual in question. Pleasure of the moral sanction.
3. Pleasure founded on the hope of receiving inexigible services at the hands of persons benefited by the being entrusted with the use of the trust-property. This also is a pleasure of the moral sanction.
4. Pleasure founded on the hope of sharing in the esteem, the good-will, and the inexigible services of the different persons to whom his capacity and probity in the management of the trust property may have become known. This is also a pleasure of the moral sanction.
5. When a salary is annexed to the duty: pleasure of pecuniary profit.
It is but too well known, that the pleasures respectively belonging to these conditions are liable to vanish, and at any rate to be alloyed by a corresponding set of pains. These pains are too obvious to need insisting on. The value of any such condition may therefore be either positive or negative; in plain terms, a man may either be the better for it, or the worse. Where the value of it is positive, it will consist of the sum of the values of the several pleasures, after that of the several pains had been deducted: when negative, as the sum of the value of the pains after that of the pleasure has been deducted. When, therefore, the value of any such condition happens to be negative, a sentence taking a man out of it must needs operate, not as a punishment but as a reward.
With regard to those pleasures or benefits which are common to several of the above conditions, it is manifest that, though the pleasure is in each of these several cases nominally the same, they are liable to be very different in point of value. Thus the pleasure of contributing to the happiness of the person who forms the other term in the relation, is incident to the condition of parent, and also to that of a guardian: but it is more certain and more vivid in the case of the father than in that of the guardian. To engage, however, further in such details, besides their being so obvious, would lead us from the subject of politics to that of morals.
Let us now proceed to consider the manner in which the several forfeitures may be produced, or, as the case be, any part of them may be employed as an instrument of punishment.
The advantages of the conjugal condition may be subtracted as a punishment by a judicial sentence, declaring that the offender is not, or shall not be any longer considered as the husband or wife of the person in question.
The consequence of such sentence would be, not completely to destroy the advantages of that condition, but to render them precarious.
If after this sentence has been pronounced, they cohabit, or are suspected of cohabiting together, the woman is considered as a concubine. When this sort of connexion is known to subsist, it is in some countries punished by the moral sanction, in others, both by the moral and political.* By legal divorce, a man is also deprived, in the whole or in part, of the inexigible services derived from the right he has over the property of his wife, and especially of those services derived from cohabitation; it would make him dependent upon her with respect to the testamentary disposition over such part of her property of which she might have an absolute power of disposal.
With respect to the pleasures derivable from the relation of father, the law, it is true, cannot deprive a man altogether of the pleasures connected with this condition, but it may be greatly embittered; as, for example, by a retrospective sentence, declaring his children to be illegitimate. Upon those who might be born subsequent to the sentence of divorce, the punishment would fall with much greater certainty, for the public opinion, which would not be forward in supporting the degradation of children born under the faith of lawful wedlock, would not exercise the same indulgence towards those who were born after a divorce.
The paternal and filial condition may, in so far as the nature of the case admits of it, be in the same manner subtracted by a judicial sentence, declaring that the offender is not, or shall no longer be considered as the father or the son of the person in question.
The certain effects of a sentence of the kind in question, in respect of the father, would be to deprive him of all legal power over the person of his child: in respect of the child, to deprive him of taking by inheritance or representation the property of his father.
As to the other advantages derivable from these relations, the sentence may or may not have any effect, according to the feelings of the parties interested; its operation will depend upon the father and the son — upon their more immediate connexions, and upon the public in general.
As to the office of guardian, and other offices of a fiduciary nature, the sentence will operate to the whole extent of those offices: a legal interdiction of all the acts annuls all the advantages issuing from them.
It may at first sight appear extraordinary that a power should be attributed to the magistrate, of destroying relations founded in nature. It is, it may be observed, an event — an event that has already happened; and how can it be in the power of any human tribunal to cause that which has taken place, not to have taken place? This cannot be accomplished; but the magistrate may have power to persuade people to believe that an event has happened in a manner different from what it actually did happen. It is true that, upon the parties themselves, and upon the persons who have a direct knowledge of the fact, the power of the magistrate, as to this purpose, is altogether nugatory; but with the public at large, an assertion so sanctioned would have the greatest weight. The principal obstacle to the exercise of any such power, however, is, that a declaration to this effect as a penal instrument, would, upon the face of it, bear marks of its own falsehood. This is a dilemma from which there is no escaping. If the offender is not the father of the person in question, to declare that he is not, is not an act of punishment: if he is his father, the declaration is false.
The idea of employing as a mode of punishment the subtraction of any of the rights attached to the several conditions as above, is not, however, so extravagant as at first might be imagined. If not the same thing, what approaches very near to it, is already in use.
This object may be effected in two modes: one, the endeavouring to cause it to be believed that the offender does not stand in the relation of father or of son, as the case may be, to the person regarded as such: the other is in endeavouring to cause it to be believed, that from the non-observance of some legal form, the progeny is illegitimate.
A case somewhat analogous to this, is that famous one upon which so many volumes have been written —corruption of blood; or, in other words, the perfection of inheritable blood. The plain object, stripped of all disguise, is to prevent a man from inheriting, as he would have done if this punishment had not been pronounced: but what is endeavoured to be done, by the help of this expression, is to cause it to be believed that the blood of the person in question undergoes some real alteration, which is a part of the punishment.
Another example in which, at least in words, a controul is assumed over events of the description of those in question, is, by that barbarous maxim, that a bastard is the son of no one— a maxim which has a tendency, as much as it is in the power of words to give it, to deprive a man of all parental connexions. It is not, however, ever employed as a punishment.
Another example, opposite to the preceding one, is that other legal maxim, pater est quem nuptiæ demonstrant— a maxim by which sanction is frequently given to a palpable falsehood. By recent decisions, the severity of this rule has, however, been relaxed; it being now settled, that though marriage is to be considered as presumptive proof of filiation, it may be rebutted by evidence of the impossibility of any connexion having taken place.
In France, a mode of punishment has been employed, which, it is true, without any such pretence as that of destroying the fact of parentage, endeavoured, as far as might be, to abolish all trace of it, by imposing on the person in question the obligation of changing his name.*
The same punishment has been employed in Portugal.†
The punishment consisting in the forfeiture of credibility is another example, no less remarkable, of an attempt to exercise a despotic controul over the opinions of men. As part of the punishment for many sorts of offences, which do not import any want of veracity, the offender is declared to have lost all title to credence: the visible sign of this punishment is the not being permitted to depose in a court of justice.
The forfeiture of the conjugal condition, at least to a certain extent, is frequently among the consequences of imprisonment, especially when with imprisonment is combined penal labour. This part of the punishment is not formally denounced, but it is not the less real. It is not ever in express terms declared that a man is divested of this condition; but he is in fact precluded from the principal enjoyments of it, and the condition, separate from the pleasures that belong to it, is evidently nothing more than a mere name. The forfeiture is temporary or perpetual, according as the imprisonment is either one or the other.
Liberty being a negative idea — exemption from obligation — it follows, that the loss of liberty is a positive idea. To lose the condition of a freeman, is to become a slave. But the word slave, or state of slavery, has not any very definite meaning which serves to designate that condition as existing in different countries. There are some countries in which slavery is unknown. In countries in which slavery is in use, it exists under different forms, and in different degrees. The pain of servitude would be different, according to the class to which the offender might be aggregated.
Slaves are of two classes: they may belong to the government or to individuals.
The condition of public slaves, determined by regulation, fixing the nature and amount of the work, and the coercive punishments by which the performance of it may be compelled, is not distinguishable from the condition of persons condemned for life to penal labour: if there exist no such regulations, it varies little from private slavery. A public slave, unprotected by any such regulations, is placed under the despotic controul of an overseer, who is bound to employ him, for the benefit of the public, in a certain sort of occupation: this power, arbitrary as it is, does not extend to life and death. This condition varies very little from that of private slavery. A negro, for example, employed upon a plantation belonging to the crown, is not from this circumstance in a condition greatly superior to what he would be in if standing in the same relation to a private individual, who, instead of being his own overseer, employed an agent for that purpose.
The most ready means of forming a correct conception of the condition of slavery, is by considering it, in the first instance, as absolute and unlimited. In this situation the slave is exposed to every possible species of evil. The punishment designated, then, by the expression, forfeiture of liberty, is no other than the being exposed to a greater or less chance, according to the character of the master, of suffering all sorts of evils; that is to say, of all evils resulting from the different modes in which punishment may be inflicted. To form an accurate notion of this situation, all that is required is to glance the eye over all the possible varieties of punishment. The slave, with respect to the individual standing in the condition of master, is absolutely deprived of all legal protection.*
Such is the nature of slavery under its most simple form: such is the nature of the total deprivation of liberty. The different restrictions that may be imposed on the exercise of this power, renders the state of servitude more or less mild.
There are, then, two heads to which the evils resulting from this condition may be referred:—
1. The risk, on the part of the slave, of being subject to every possible evil, with the exception of such only as the master is expressly prohibited from inflicting; 2. The continuity of the pain, founded on the apprehension of these sufferings.
I shall say but one word upon a subject that would require a volume.
The loss of political liberty is produced by a change in the condition, not merely of any particular individual, but of the whole community. The loss of liberty is the result of a fresh distribution of the power of the governing body — a distribution which renders the choice of the persons, or their measures, less dependent upon the will of the persons governed. A fresh distribution of power depends absolutely upon a corresponding disposition to pay obedience to that fresh distribution. When superior physical force is in the possession of those from whom obedience is demanded, it is evident that the power of commanding can be exercised only in so far as that obedience is rendered. As this disposition to pay obedience may be produced by the conduct of a single individual of the governing class, it may be, and has frequently been said, that a single man has destroyed the constitutional liberty of a whole nation. But if the analysis of such events be followed out, it will be found that this liberty can be destroyed only by the people themselves.
A class of forfeitures, as miscellaneous and extensive as any, and the last that we shall now take notice of, is that of the protection, whatever it be, which the law affords a man for the enjoyment of the objects of possession. This is not altogether the same thing with a forfeiture of the possessions themselves. In the instance of some of them, the law, by taking from him the possessions themselves, excludes him, by sure and physical means, from the enjoyment of them. In the instance of others, the law, without taking away from him altogether the physical capacity of enjoying them, punishes him in the case of his attempting to enjoy them. In the remaining cases, the law uses not either of those compulsive methods: it, however, does an act by which the parties on whose choice the enjoyment of the object in question depends, are disposed, on pre-established principles, to put an end to it. It therefore, in this case, likewise becomes still the author of the punishment. This is the case with the forfeitures in which the political sanction produces its effect, not by its own immediate energy, but by the motion it gives, if one may so say, to the moral and religious sanctions.
In the case of forfeiture of protection, the law takes no such active part. All it does is this: it simply withdraws, in part or altogether, that punishment by means of which it protects a possessor in the enjoyment of those several possessions. If, then, every man refrain from disturbing him in the enjoyment of any such possession, it is well the law does nothing of itself to prompt them to it. But if any persons of their own motion choose to disturb him, it is also well the law does nothing of itself to hinder them. Forfeiture of protection is, in short, neither more nor less than the forfeiture of the use of the ministers of justice; that is, of such persons whose business it is to protect the several members of the community in the enjoyment of their respective rights.
Between forfeiture of protection, and forfeiture of capacity, the difference is, that by the latter, the law does what is necessary to prevent a man’s acquiring a possession: in the former, it forbears to do anything to prevent his losing it. When considered with reference to the individual who has forfeited the protection of the law, this species of punishment may be called forensic disability; it forms part of the artificially complex punishment of outlawry; the consideration of which will be subsequently resumed.*
Last updated Monday, December 22, 2014 at 10:48