The Online Library of Liberty

A project of Liberty Fund, Inc.

• Errata—vol. I.
• General Preface.
• Introduction to the Study of the Works of Jeremy Bentham;
• Section I.: Bentham’s Style and Method of Thinking.
• Section II.: The Greatest-happiness Principle and Its Application to Morals and Legislation.
• Section III.: The Pursuit of Truth.—fallacies.—principles of Evidence.
• Section IV.: System of Government.
• Section IV.: Law Reform.
• Section VI.: Principles of Punishment.
• Section VII.: Poor Laws, Education, and Other Institutions For National Amelioration.
• Section VIII.: International Law.
• Section IX.: Political Economy.
• Section X.: Logic and Metaphysics. †
• An Introduction to the Principles of Morals and Legislation.
• Preface.
• Chapter I.: Of the Principle of Utility.
• Chapter II.: Of Principles Adverse to That of Utility.
• Chapter III.: Of the Four * Sanctions Or Sources of Pain and Pleasure.
• Chapter IV.: Value of a Lot of Pleasure Or Pain, How to Be Measured.
• Chapter V.: Pleasures and Pains, Their Kinds.
• Chapter VI.: Of Circumstances Influencing Sensibility.
• Chapter VII.: Of Human Actions In General.
• Chapter VIII.: Of Intentionality.
• Chapter IX.: Of Consciousness.
• Chapter X.: Of Motives.
• Chapter XI.: Of Human Dispositions In General.
• Chapter XII.: Of the Consequences of a Mischievous Act.
• Chapter XIII. *: of Circumstances Influencing the Degree of Alarm.
• Chapter XIV.: Reasons For Considering Certain Actions As Crimes. *
• Chapter XV.: § 1. General View of Cases Unmeet For Punishment.
• Chapter XVI.: Of the Proportion Between Punishments and Offences.
• Chapter XVII.: Of the Properties to Be Given to a Lot of Punishment.
• Chapter XVIII. § 1.: Classes of Offences.
• Chapter XIX.: § 1. Limits Between Private Ethics and the Art of Legislation.
• I. Essay On the Promulgation of Laws
• Essay On the Influence of Time and Place In Matters of Legislation.
• Introduction. *
• Chapter I.: Principles to Be Followed In Trans Planting Laws.
• Chapter II.: Regard to Be Paid to Subsisting Institutions.
• Chapter III.: Rules Respecting the Method of Transplanting Laws.
• Chapter IV.: Laws Appear the Worse For Being Transplanted.
• Chapter V.: Influence of Time.
• A Table of the Springs of Action:
• A Fragment On Government;
• Preface to the First Edition, Published In 1776.
• Historical Preface, Intended For the Second Edition.
• Three Letters On the Fragment On Governmen
• Letter the First. of an Examination Into the Merits of a Critique On Blackstone’s Commentaries, Lately Published Under the Title of a Fragment On Government.
• Letter the Second. of an Examination Into the Merits of a Critique On Blackstone’s Commentaries, Lately Published Under the Title of a Fragment On Government.
• Letter the Third. By John Lind, Esq. Afterwards Barrister At Law, to D., Author of Two Letters * On a Fragment On Government.
• Introduction. *
• Chapter I.: Formation of Government.
• Chapter II.: Forms of Government.
• Chapter III.: The British Constitution.
• Chapter IV.: Right of the Supreme Power to Make Laws.
• Chapter V.: Duty of the Supreme Power to Make Laws.
• Principles of the Civil Code.
• Introduction.
• Part I.—: Objects of the Civil Law. *
• Chapter I.: Of Rights and Obligations.
• Chapter II.: Distinct Objects of the Civil Law.
• Chapter III.: Relation Between These Objects.
• Chapter IV.: Of Laws Relative to Subsistence.
• Chapter V.: Of Laws Relative to Abundance.
• Chapter VI.: Propositions of Pathology Upon Which the Advantage of Equality Is Founded.
• Chapter VII.: Of Security.
• Chapter VIII.: Of Property.
• Chapter IX.: Answer to an Objection.
• Chapter X.: Analysis of the Evils Resulting From Attacks Upon Property.
• Chapter XI.: Security and Equality—their Opposition.
• Chapter XII.: Security and Equality—means of Reconciliation.
• Chapter XIII.: Sacrifices of Security to Security.
• Chapter XIV.: Cases Subject to Dispute.
• Chapter XV.: Examples of Attacks Upon Security.
• Chapter XVI.: Of Forced Exchanges.
• Chapter XVII.: Power of the Laws Over Expectation.
• Part II.
• Chapter I.: Of Titles Which Confer a Right to Property. *
• Chapter II.: Another Mode of Acquisition—consent.
• Chapter III.: Another Means of Acquisition—succession.
• Chapter V.: Of Wills.
• Chapter V.: Of Rights Respecting Services—means of Acquiring Them.
• Chapter VI.: Community of Goods—its Inconveniences.
• Chapter VII.: Of Distribution of Loss.
• Part III.: Of the Rights and Obligations Attached to Different Private Conditions.
• Introduction.
• Chapter I.: Of Master and Servant.
• Chapter II.: Of Slavery.
• Chapter III.: Of Guardian and Ward.
• Chapter IV.: Of Parent and Child.
• Chapter V.: Of Marriage.
• Appendix.: of the Levelling System. *
• Principles of Penal Law.
• Part I.: Political Remedies For the Evil of Offences.
• Chapter I.: Subject of This Book.
• Chapter II.: Of Direct Methods of Preventing Offences.
• Chapter III.: Of Chronic Offences.
• Chapter IV.: Of Suppressive Remedies For Chronic Offences.
• Chapter V.: Of Martial Law
• Chapter VI.: Of the Nature of Satisfaction.
• Chapter VII.: Reasons Upon Which the Obligation to Make Satisfaction Is Founded.
• Chapter VIII.: Of the Different Kinds of Satisfaction.
• Chapter IX.: Of the Quantity of Satisfaction to Be Granted.
• Chapter X.: Of the Certainty of Satisfaction.
• Chapter XI.: Of Pecuniary Satisfaction.
• Chapter XII.: Of Restitution In Kind.
• Chapter XIII.: Of Attestative Satisfaction.
• Chapter XIV.: Of Honorary Satisfaction.
• Chapter XV.: Remedies For Offences Against Honour.
• Chapter XVI.: Of Vindictive Satisfaction.
• Chapter XVII.: Of Substitutive Satisfaction, Or At the Expense of a Third Party.
• Chapter XVIII.: Of Subsidiary Satisfaction At the Expense of the Public Treasure.
• Part II.—: Rationale of Punishment.
• Advertisement.
• Book I.: General Principles.
• Chapter I.: Definitions and Distinctions.
• Chapter II.: Classification.
• Chapter III.: Of the Ends of Punishment.
• Chapter IV.: Cases Unmeet For Punishment.
• Chapter V.: Expense of Punishment.
• Chapter VI.: Measure of Punishment.
• Chapter VII.: Of the Properties to Be Given to a Lot of Punishment.
• Chapter VIII.: Of Analogy Between Crimes and Punishments.
• Chapter IX.: Of Retaliation.
• Chapter X.: Of Popularity.
• Book II.: Of Corporal Punishments.
• Chapter I.: Simple Afflictive Punishments. *
• Chapter II.: Of Complex Afflictive Punishments.
• Chapter III.: Of Restrictive Punishments—territorial Confinement.
• Chapter IV.: Imprisonment.
• Chapter V.: Imprisonment—fees.
• Chapter VI.: Imprisonment Examined.
• Chapter VII.: General Scheme of Imprisonment.
• Chapter VIII.: Of Other Species of Territorial Confinement—quasi Imprisonment—relegation—banishment.
• Chapter IX.: Of Simply Restrictive Punishments.
• Chapter X.: Of Active Or Laborious Punishment.
• Chapter XI.: Capital Punishment.
• Chapter XII.: Capital Punishment Examined. *
• Book III.: Of Privative Punishments, Or Forfeitures.
• Chapter I.: Punishment Analyzed.
• Chapter II.: Of the Punishments Belonging to the Moral Sanction.
• Chapter III.: Forfeiture of Reputation.
• Chapter IV.: Of Pecuniary Forfeitures.
• Chapter V.: Forfeiture of Condition.
• Chapter VI.: Forfeiture of the Protection of the Law.
• Book IV.: Of the Proper Seat of Punishment: Or Say, of Mis-seated Punishment.
• Book V.: Of Complex Punishments.
• Chapter I.: Inconveniences of Complex Punishments.
• Chapter II.: Of Transportation.
• Chapter III.: Panopticon Penitentiary.
• Chapter IV.: Felony.
• Chapter V.: Of PrÆmunire.
• Chapter VI.: Outlawry.
• Chapter VII.: Excommunication.
• Book VI.: Miscellaneous Topics.
• Chapter I.: Choice of Punishments—latitude to Be Allowed to the Judges.
• Chapter II.: Of Subsidiary Punishments.
• Chapter III.: Of Surety For Good Conduct.
• Chapter IV.: Defeazance of Punishment.
• Appendix—: On Death-punishment. ∥ Jeremy Bentham to His Fellow-citizens of France.
• Part III.: Of Indirect Means of Preventing Crimes.
• Introduction.
• Chapter I.: Methods of Taking Away the Physical Power of Injuring.
• Chapter II.: Another Indirect Method—hinder the Acquisition of Knowledge Which May Be Rendered Injurious. †
• Chapter III.: Of Indirect Means of Preventing the Will to Commit Offences.
• Chapter IV.: Problem I. to Divert the Course of Dangerous Desires, and Direct the Inclination Towards Those Amusements Which Are Most Conformed to the Public Interest.
• Chapter V.: Problem II. to Make Such Arrangements, That a Given Desire May Be Satisfied Without Prejudice, Or With the Least Possible Prejudice.
• Chapter VI.: Problem III. to Avoid Furnishing Encouragement to Crimes.
• Chapter VII.: Problem IV. to Augment the Responsibility of Individuals, In Proportion As They Are More Exposed to Temptation to Do Wrong.
• Chapter VIII.: Problem V. to Diminish Sensibility With Regard to Temptation.
• Chapter IX.: Problem VI. to Strengthen the Impression of Punishments Upon the Imagination.
• Chapter X.: Problem VII. to Facilitate the Discovery of Offences Committed.
• Chapter XI.: Problem VIII. to Prevent Offences, By Giving to Many Persons an Interest In Preventing Them.
• Chapter XII.: Problem IX. to Facilitate the Recognition and the Finding of Individuals.
• Chapter XIII.: Problem X. to Increase the Difficulty of Escape For Delinquents.
• Chapter XIV.: Problem XI. to Diminish Uncertainty With Regard to Procedure and Punishment.
• Chapter XV.: Problem XII. to Prohibit Accessory Offences, In Order to Prevent Their Principals.
• Chapter XVI.: Of the Cultivation of Benevolence.
• Chapter XVII.: Employment of the Motive of Honour, Or of the Popular Sanction.
• Chapter XVIII.: Of the Employment of the Religious Sanction.
• Chapter XIX.: Uses to Be Drawn From the Power of Instruction.
• Chapter XX.: Use to Be Made of the Power of Education.
• Chapter XXI.: General Precautions Against the Abuse of Authority.
• Chapter XXII.: Measures to Be Taken Against the Ill Effects of an Offence Already Committed—conclusion of the Subject.

CHAPTER III.

FORFEITURE OF REPUTATION.

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.

§ 2.

Simple Ignominious Punishments examined.

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.*

[* ]Though infamy is the more common, for feiture of reputation is the more convenient expression of the two. Infamy is a term which appears forced, when applied to any other than very high degrees of the punishment in question: the phrase, forfeiture of reputation, is accommodated to one degree as well as another; for the quantity of reputation may be conceived to be divided into as many lots or degrees as there can be reason for.

The turn and structure of language having put a man’s reputation, like his estate, upon the footing of his possessions, men have considered and spoken of the subject as if it were a quantity alike determinate, and as if a man might be made to forfeit the whole of his reputation at a single stroke, as he may the whole of his estate. But that this, though possible in the latter instance, is impossible in the former, will presently be seen, by tracing up these fictitious objects of possession to the real objects from whence they are respectively derived. A man’s estate is derived out of things; out of certain determinate allotments of things, moveable or immoveable; or if any part of it be derived immediately out of persons, it is derived out of the services of a few persons, and those persons (and very frequently those services due from each person) determinate and certain. But a man’s reputation is derived immediately out of persons; out of the services of persons; out of any services of any persons whatsoever; out of the services of as many persons, be they who they may, as choose to render him any. This is a stock which the political magistrate can never, perhaps, by any one operation, nor indeed by any number of operations of any kind, be certain of exhausting; much less by any such vague and feeble operations as those are by which an offender is commonly understood to have been made to incur the forfeiture of reputation, that is, the punishment of infamy.

If there be, it is that punishment which, if the vulgar tradition is to be depended upon, was inflicted by Richard III. on Jane Shore—the direct prohibiting of all persons from rendering to the offender any kind of service. But this is but, in other words, the punishment of starving. The same punishment has sometimes been denounced in other countries, where, being strictly executed, it has been, as it could not but be, attended with that effect.a

[* ]This anxiety may be grounded or excited, not solely by a supposed utility of the law, but in some degree by a supposed propensity in the people to disobey it.

[† ]Of terms of condemnation applied directly to the offence, the improbè factum of the Lex Valeria may serve for an example: “Valeria Lex, quum eum qui provocâsset virgis cædi securique necari voluisset, siquis adversus ea fecisset, n’hil ultra quam improbè factum adjecit.”—Livy, l. 10, ch. 9.

The laws of Greece and Rome afford several examples, where for different offences the offender is pronounced infamous.a

[‡ ]Of this we have an example in certain laws of Zaleucus, the Locrian legislator, pretended to have been preserved (says my authority) by Diodorus Siculus: “Let not a free woman go forth from the city in the night, unless when she goes to prostitute herself to her gallant. Let her not wear rich ornaments, or garments interwoven with gold, unless she be a courtezan.”—Princ. of Pen. Law, c. 26.

This was as much as to say, that if he knew of a woman’s going abroad in a lone place at the unseasonable hour he is speaking of, the legislator should take it for granted that such was the errand she went out upon. If she dressed in a manner in which it was particularly the business of courtezans to dress, he should take for granted her being of that stamp.

[* ]In certain offences against the police,—for instance, in selling bread by shortweight,—it is not an uncommon thing, where the degree of delinquency appears to be considerable, for the magistrate to threaten the offender, that upon the next conviction he shall be advertised in the newspapers. Such a punishment seems to be looked upon as more severe than the fine imposed by statute.

[† ]When the punishment is capital, or the sentence discretionary, it is common with us in England to preface it with such a speech.

[‡ ]Aware of this circumstance, the Roman lawyers have taken a distinction between the infamia facti and the infamia juris—the natural infamy resulting from the offence, and the artificial infamy produced through the means of the punishment by the law. See Heinecc. Elementa Jur. Civil. Pand. 1. 3, tit. 2, § 399, whose explanation, however, is not very precise.

[∥ ]Such as the obligation to ask pardon—an instance of active punishment: the forbearing to carry on an employment which the offender has exercised fraudulently—an instance of restrictive punishment: the forbearing to come into the presence of the party injured—an instance of ambulatory confinement.

[* ]Among the ancient Persians, in some cases, when the criminal was of high rank, instead of whipping the man himself, it was the custom to whip his clothes. To this head may also be referred the custom which prevails in France and other nations upon the continent of executing criminals in effigy. The feigned punishment inflicted on the effigy is commonly, I suppose, the same that would have been really infficted upon the man’s person for the same offence; nor is it usual, I believe, to employ this punishment where the delinquent is forthcoming.

In Portugal, several of the persons who were concerned in the attempt upon the late king’s life were punished in this manner.

[† ]To this head may be referred a part of the punishment in use in England for high treason, according to the common law; the taking out and burning of the entrails, the cutting off the head, and the dividing the body into four quarters, which are disposed of at the King’s pleasure. 2 Hawkins, 443.

By an English statute, in cases of murder, the judge is enjoined to order the body (after the criminal has been put to death by hanging) to be publicly dissected, and is empowered to order it to be hung in chains, as the phrase is; which is practised by suspending it from a gibbet in an iron frame.

[* ]For instance, to high treason, or the adherence to the unsuccessful side in a competition for the Crown: to homicide committed in revenge, on a sudden quarrel, or in the course of a duel, by consent: to rape, and other irregularities of the venereal appetite. This, however, seems to proceed not so much from design as from inattention in the authors of our common law; and is one of the many absurd and mischievous consequences that follow from the lumping together offences of the most heterogeneous natures under the name of felonies.

[* ]See Traités de Legislation, tom. iii. c. 17. Emploi du Mobile de l’Honneur.

[* ]Contrat Social, liv. iv. c. 7.

[* ]P. 290, 1st edit.

[† ]I say the public purse—I do not say the public simply. Far from the pen of the legislator be that stale sophistry of declaiming meralizers, which consists in giving to one species of misbehaviour the name and reproach of another species of a higher class, confounding in men’s minds the characters of vice and virtue. Pure from all taint of falsehood should the legislator keep his pen; nor think to promote the cause of utility and truth by means which only tyranny and imposture can stand in need of. In what I have said above, there is nothing but what is rigorously and simply true. But it were not true to say that a theft upon the public were as mischievous as a theft upon an individual: from this there results no alarm, and the more the loss is divided, the lighter it falls upon each.

[* ]In 1758, Dr. Shebbeare, was pillorieda for writing a libel against the then King, under a Whig administration. He stood in triumph: the people entertained him with applause. At another time, J. Williams, bookseller, was pilloried for publishing a libel against his Majesty George the Third, under an administration charged with Toryism: the people made a collection for him. At another time, W. Beckford, Lord Mayor of London, replied extempore, in an unprecedented and affrontive manner, to a speech from the throne: the citizens put up his statue in Guildhall. Shame did not then, I think, follow the finger of the law.

[* ]Let me be permitted here to illustrate what has been said of the power possessed by ancient legislators, by a modern example, borrowed from what to some persons will appear a frivolous subject, and certainly from a frivolous person. The legislator in question was a master of ceremonies. For a long series of years, by the authority of opinion, Nash, commonly called Beau Nash, regulated at Bath the conduct of the company assembled at that place during the season: sovereign arbiter and director of all points pertaining to the custom and etiquette of the place, of the order in which balls, concerts, &c. were to succeed each other. How did he go to work? “Let such a thing be done,” said the legislator of the Bath Assemblies. “Let not such a thing be done.” “Let such an Assembly take place on such a day: that it begin at such an hour, that it finish at such an hour,” &c. &c. Setting aside the extreme disparity of the object the resemblance is striking between these ordinances of fashion, and such laws of antiquity as have been handed down to us. There were no punishments, properly so called. The company assembling met there, confiding in his prudence and experience in the concerns he had to regulate, put into his hands a certain quantity of the power of the moral sanction, and the public voice was ready to be raised against the infractors of his rules; and laws the weakest in appearance, were most strictly obeyed.

[* ]Though infamy is the more common, for feiture of reputation is the more convenient expression of the two. Infamy is a term which appears forced, when applied to any other than very high degrees of the punishment in question: the phrase, forfeiture of reputation, is accommodated to one degree as well as another; for the quantity of reputation may be conceived to be divided into as many lots or degrees as there can be reason for.

The turn and structure of language having put a man’s reputation, like his estate, upon the footing of his possessions, men have considered and spoken of the subject as if it were a quantity alike determinate, and as if a man might be made to forfeit the whole of his reputation at a single stroke, as he may the whole of his estate. But that this, though possible in the latter instance, is impossible in the former, will presently be seen, by tracing up these fictitious objects of possession to the real objects from whence they are respectively derived. A man’s estate is derived out of things; out of certain determinate allotments of things, moveable or immoveable; or if any part of it be derived immediately out of persons, it is derived out of the services of a few persons, and those persons (and very frequently those services due from each person) determinate and certain. But a man’s reputation is derived immediately out of persons; out of the services of persons; out of any services of any persons whatsoever; out of the services of as many persons, be they who they may, as choose to render him any. This is a stock which the political magistrate can never, perhaps, by any one operation, nor indeed by any number of operations of any kind, be certain of exhausting; much less by any such vague and feeble operations as those are by which an offender is commonly understood to have been made to incur the forfeiture of reputation, that is, the punishment of infamy.

If there be, it is that punishment which, if the vulgar tradition is to be depended upon, was inflicted by Richard III. on Jane Shore—the direct prohibiting of all persons from rendering to the offender any kind of service. But this is but, in other words, the punishment of starving. The same punishment has sometimes been denounced in other countries, where, being strictly executed, it has been, as it could not but be, attended with that effect.a

[† ]Of terms of condemnation applied directly to the offence, the improbè factum of the Lex Valeria may serve for an example: “Valeria Lex, quum eum qui provocâsset virgis cædi securique necari voluisset, siquis adversus ea fecisset, n’hil ultra quam improbè factum adjecit.”—Livy, l. 10, ch. 9.

The laws of Greece and Rome afford several examples, where for different offences the offender is pronounced infamous.a

[* ]In 1758, Dr. Shebbeare, was pillorieda for writing a libel against the then King, under a Whig administration. He stood in triumph: the people entertained him with applause. At another time, J. Williams, bookseller, was pilloried for publishing a libel against his Majesty George the Third, under an administration charged with Toryism: the people made a collection for him. At another time, W. Beckford, Lord Mayor of London, replied extempore, in an unprecedented and affrontive manner, to a speech from the throne: the citizens put up his statue in Guildhall. Shame did not then, I think, follow the finger of the law.

[a ]Case of the Albigenses.—See Rapin (Monfort).—See Watson’s Phil. 2d.

[a ]So by 9 Anne c. 14, § 5, a loss at play, if prosecuted on that statute, is to be declared infamous.—Vide etiam stat. Ed. 6.

[a ]2 Bur. 792.