The Rationale of Punishment

Book III

Of Privative Punishments, Or Forfeitures

Chapter III

Section II


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 legislators 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 us 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 offense. It is not, however, like corporal punishment, capable of being universally applied to all offenses. In many cases an offense 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 front 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 maybe 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 offense 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 offense that degree of infamy that he may be desirous of affixing to it. There are some classes of offenses 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 in which they are wavering, neutral, or too feeble to serve his purpose. The case of dueling 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.'' [2]

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 as 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 act of the offense. In this way it is only in point of extent that the magistrate adds to the actual portion of infamy that flows from the offense.

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 offense, 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 checks 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 legislator 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 offense 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 offense of libelling in general, the offense 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, recognize 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 on arguments 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, wild 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 Zaleucuses, 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 front the blind obsequiousness of the disciples of Pythagoras: and not ill characteristic of the manner of thinking of those who pretended to make any use of their thinking faculty throughout ancient Greece.

[RP, Book III, Chapter III] [RP, Book III, Chapter IV]