The Rationale of Punishment

Book III

Of Privative Punishments, or Forfeitures

Chapter III


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 offense.

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.---2nd. But in this case, as in any other, the law may carry itself into execution in the ordinary methods of procedure; authorising 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 shew 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 he is that it should meet with obedience, the more pernicious [it shews] he appears to deem the conduct of any one who disobeys it, or at least the more convinced he shews 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 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 of 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 connection, however superficial, there must be between the two offenses. 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 enquire into the different measures of infamy that stand naturally annexed to the several modes of punishment; and in the course of this enquiry 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 m 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 stiled 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 offense, 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 stiled 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 postobitory 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 dis-esteem in general, nor yet so much of their dis-esteem 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 connection 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 offenses which have not the remotest connection 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 goodwill, 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 gentleman, 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 ignomy.

Degradation, did it answer precisely to the definition given of it, when it is stiled 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 goodwill 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 stiled 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.

[RP, Book III, Chapter II, §2] [RP, Book III, Chapter III, §2]