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CHAPTER V.: FORFEITURE OF CONDITION. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 1 (Principles of Morals and Legislation, Fragment on Government, Civil Code, Penal Law) 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 1.
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FORFEITURE OF CONDITION.
When the property under consideration consists of a real tangible entity, as a house or lands, it presents itself under its most simple and intelligible shape: but when it is of an incorporeal nature, it can only be designated by abstract terms; and to explain those terms it is necessary to have recourse to those real entities from which those fictitious entities derive their name and their signification. In order to explain the nature of any particular condition in life, for example that of husband, it is necessary to state the right conferred upon him by the law, over the person, the property, and the services of an existent being—the woman to whom he is married. To explain the nature of rank, it is necessary to explain the rights that it confers—the exclusive privilege of using a certain title, of being habited in a particular manner, of being entitled to priority upon certain occasions; in short, to enjoy such honours as are attached to the particular rank in question. So far the effect produced is produced by the operation of the law. As to the honour itself, which is the source of their value, it depends upon the moral sanction. It is, however, a species of property. A man invested with a certain rank is entitled to receive from persons at large unexigible services, services of respect, and which will be generally rendered to him in consideration of his rank.
In respect of offices—public offices—we may point out the power possessed by the person holding them over his subordinates, the emoluments that are attached to them, and the unexigible services that may result from the possession of them; that is to say, benefits resulting from the disposition that may be supposed to be felt by persons at large to render services to a man placed in an official station.
By the same process we may explain the nature of all rights; for example, the right of voting in a parliamentary election. Every person in possession of this right has the privilege of giving a vote, by which he influences the choice of the person to be vested with a particular species of power. The value of this interest, under the present state of things, consists principally in giving the elector a certain power over the candidate and his friends. An honest and independent exercise of this right is a means of acquiring reputation. To generous and benevolent minds there also accrues from it a pleasure of sympathy, founded on the prospect of public happiness, that is to say, upon the influence that the choice of a virtuous and enlightened candidate may have upon the public welfare.
The value of a condition in life, of a right, of a privilege, being explained to consist in power, profit, and reputation, that is to say, the pleasures resulting from the possession of it, we are in possession of all the necessary elements for estimating the evil accruing from their loss, or, in other words, the magnitude of the punishment occasioned by their forfeiture.
To give an analytical view of all the modifications of which property is susceptible, and every species of forfeiture to which it may be exposed, would be a work of almost endless labour. We shall content ourselves here with giving a few examples, beginning with,
The Matrimonial Condition.
The evils liable to be experienced by the husband from the forfeiture of this condition, consist in the loss of the pleasures belonging to it.
1. The pleasures which are the principal objects in the institution of marriage, may be divided into—1st, Pleasures of sense; and 2d, Pleasures proceeding from the perception of an agreeable object, which depends partly on the senses, and partly on the imagination.
2. The innumerable minor pleasures of all kinds resulting from those inexigible services which belong to a husband’s authority. Notwithstanding their variety, they may be all of them comprised under the head of pleasures of possession.
3. The pleasures resulting from the use of the property derived from the wife: these belong to the same head as the preceding.
4. Where the wife has separate property, over which a power of disposal is reserved to her, pleasure resulting from the hope of becoming possessed of this part of her property. Pleasure of expectation founded on the pleasures derivable from the possession of wealth.
5. The pleasure resulting from the persuasion of being beloved—this affection producing a variety of uncompellable services, which have all the charms of appearing to be as spontaneous as those that are the result of friendship. These pleasures may be referred to the pleasures of the moral sanction.
6. The pleasure resulting from the good repute of the wife, which is reflected upon the husband, and which has a natural tendency, as honour derived from any other source, to conciliate to him the esteem and good-will of persons in general. This may also be referred to the pleasures arising from the moral sanction.
7. The pleasure of witnessing her happiness, and especially that part of it which he is most instrumental in producing. This is the pleasure of benevolence or good-will.
8. The pleasure resulting from the several uncompellable services received at the hands of the family of which he has become a member. This may be referred to the pleasures of the moral sanction.
9. The pleasure of power, considered generally, independently of any particular use that may be made of it, with which he is invested, in virtue of the exclusive controul he possesses over the fund for reward and punishment. This may be referred to the pleasures of the imagination.
10. The pleasure resulting from the condition of father. This we shall have occasion to notice in considering the evils resulting from the forfeiture of the condition of father.
This same catalogue, with such slight variations as the reader will find no difficulty in making, is applicable to the condition of wife.
The task of coolly analyzing and classifying feelings of this nature may appear tedious, but it is not the less necessary, if we would estimate the amount of evil resulting from the loss of this condition.
The Paternal Condition.
The evils resulting from the forfeiture of the condition of father may be referred most of them to the loss of the following pleasures:—
1. The pleasures derived from the imagining his own existence perpetuated in that of his child. This is a pleasure of the imagination.
2. The pleasure of having at his command, during the child’s minority, the services that he may be in a condition to render. This is a pleasure of power.
3. The pleasure of employing, in so far as it can be done without diminution, the separate property of this child. This is a pleasure referable to two sources—that of father, and of guardian (of which presently.)
4. The pleasure of filial affection—a pleasure of the moral sanction.
5. The pleasure reflected upon him by the good repute of his child. This also is a pleasure of the moral sanction.
6. The pleasure of advancing the happiness of his child—pleasure of benevolence or goodwill.
7. The pleasure derived from the several inexigible services that he may hope to receive from the connexions that his son, as he grows up, may form in the world—pleasure of the moral sanction.
8. The pleasure resulting from the sentiment of paternal power. This is a pleasure of the imagination.
9. In some cases, the pleasure derived from the expectation of becoming possessed of the whole or a part of the property the child may have acquired, or in case of his death the actual possession of such property. Pleasure, in the one case, of expectation founded on the pleasures derivable from the possession of wealth; in the other case, from the actual possession of wealth.
Condition of Child.
Pleasures belonging to the condition of child:—
1. The pleasure derived from the use of the exigible services of the parent.
2. The pleasure resulting from the power of using certain parts of the property belonging to the father.
3. The pleasure resulting from the persuasion of being beloved by him.
4. The pleasure derived from the good repute of the father, which is reflected upon the child.
5. The pleasure of witnessing the father’s happiness, and of contributing to promote it; a pleasure rendered more vivid by being accompanied with sentiments of gratitude.
6. The pleasure resulting from the connexions of the father, and the right he may have to certain services at their hands.
7. The pleasure derived from the hope of inheriting the whole or a part of his father’s property; or if he be dead, from the possession of the property.
Pleasures derived from the Condition of Trustee.
The pleasures resulting from standing in the condition of trustee, are the following:—
1. The pleasure resulting from the hope of contributing to the happiness of the individual whose interest is in question. This is a pleasure of benevolence or good-will.
2. The pleasure derived from the hope of the inexigible services to be expected from the gratitude of the individual in question. Pleasure of the moral sanction.
3. Pleasure founded on the hope of receiving inexigible services at the hands of persons benefited by the being entrusted with the use of the trust-property. This also is a pleasure of the moral sanction.
4. Pleasure founded on the hope of sharing in the esteem, the good-will, and the inexigible services of the different persons to whom his capacity and probity in the management of the trust property may have become known. This is also a pleasure of the moral sanction.
5. When a salary is annexed to the duty: pleasure of pecuniary profit.
It is but too well known, that the pleasures respectively belonging to these conditions are liable to vanish, and at any rate to be alloyed by a corresponding set of pains. These pains are too obvious to need insisting on. The value of any such condition may therefore be either positive or negative; in plain terms, a man may either be the better for it, or the worse. Where the value of it is positive, it will consist of the sum of the values of the several pleasures, after that of the several pains had been deducted: when negative, as the sum of the value of the pains after that of the pleasure has been deducted. When, therefore, the value of any such condition happens to be negative, a sentence taking a man out of it must needs operate, not as a punishment but as a reward.
With regard to those pleasures or benefits which are common to several of the above conditions, it is manifest that, though the pleasure is in each of these several cases nominally the same, they are liable to be very different in point of value. Thus the pleasure of contributing to the happiness of the person who forms the other term in the relation, is incident to the condition of parent, and also to that of a guardian: but it is more certain and more vivid in the case of the father than in that of the guardian. To engage, however, further in such details, besides their being so obvious, would lead us from the subject of politics to that of morals.
Let us now proceed to consider the manner in which the several forfeitures may be produced, or, as the case be, any part of them may be employed as an instrument of punishment.
The advantages of the conjugal condition may be subtracted as a punishment by a judicial sentence, declaring that the offender is not, or shall not be any longer considered as the husband or wife of the person in question.
The consequence of such sentence would be, not completely to destroy the advantages of that condition, but to render them precarious.
If after this sentence has been pronounced, they cohabit, or are suspected of cohabiting together, the woman is considered as a concubine. When this sort of connexion is known to subsist, it is in some countries punished by the moral sanction, in others, both by the moral and political.* By legal divorce, a man is also deprived, in the whole or in part, of the inexigible services derived from the right he has over the property of his wife, and especially of those services derived from cohabitation; it would make him dependent upon her with respect to the testamentary disposition over such part of her property of which she might have an absolute power of disposal.
With respect to the pleasures derivable from the relation of father, the law, it is true, cannot deprive a man altogether of the pleasures connected with this condition, but it may be greatly embittered; as, for example, by a retrospective sentence, declaring his children to be illegitimate. Upon those who might be born subsequent to the sentence of divorce, the punishment would fall with much greater certainty, for the public opinion, which would not be forward in supporting the degradation of children born under the faith of lawful wedlock, would not exercise the same indulgence towards those who were born after a divorce.
The paternal and filial condition may, in so far as the nature of the case admits of it, be in the same manner subtracted by a judicial sentence, declaring that the offender is not, or shall no longer be considered as the father or the son of the person in question.
The certain effects of a sentence of the kind in question, in respect of the father, would be to deprive him of all legal power over the person of his child: in respect of the child, to deprive him of taking by inheritance or representation the property of his father.
As to the other advantages derivable from these relations, the sentence may or may not have any effect, according to the feelings of the parties interested; its operation will depend upon the father and the son—upon their more immediate connexions, and upon the public in general.
As to the office of guardian, and other offices of a fiduciary nature, the sentence will operate to the whole extent of those offices: a legal interdiction of all the acts annuls all the advantages issuing from them.
It may at first sight appear extraordinary that a power should be attributed to the magistrate, of destroying relations founded in nature. It is, it may be observed, an event—an event that has already happened; and how can it be in the power of any human tribunal to cause that which has taken place, not to have taken place? This cannot be accomplished; but the magistrate may have power to persuade people to believe that an event has happened in a manner different from what it actually did happen. It is true that, upon the parties themselves, and upon the persons who have a direct knowledge of the fact, the power of the magistrate, as to this purpose, is altogether nugatory; but with the public at large, an assertion so sanctioned would have the greatest weight. The principal obstacle to the exercise of any such power, however, is, that a declaration to this effect as a penal instrument, would, upon the face of it, bear marks of its own falsehood. This is a dilemma from which there is no escaping. If the offender is not the father of the person in question, to declare that he is not, is not an act of punishment: if he is his father, the declaration is false.
The idea of employing as a mode of punishment the subtraction of any of the rights attached to the several conditions as above, is not, however, so extravagant as at first might be imagined. If not the same thing, what approaches very near to it, is already in use.
This object may be effected in two modes: one, the endeavouring to cause it to be believed that the offender does not stand in the relation of father or of son, as the case may be, to the person regarded as such: the other is in endeavouring to cause it to be believed, that from the non-observance of some legal form, the progeny is illegitimate.
A case somewhat analogous to this, is that famous one upon which so many volumes have been written—corruption of blood; or, in other words, the perfection of inheritable blood. The plain object, stripped of all disguise, is to prevent a man from inheriting, as he would have done if this punishment had not been pronounced: but what is endeavoured to be done, by the help of this expression, is to cause it to be believed that the blood of the person in question undergoes some real alteration, which is a part of the punishment.
Another example in which, at least in words, a controul is assumed over events of the description of those in question, is, by that barbarous maxim, that a bastard is the son of no one—a maxim which has a tendency, as much as it is in the power of words to give it, to deprive a man of all parental connexions. It is not, however, ever employed as a punishment.
Another example, opposite to the preceding one, is that other legal maxim, pater est quem nuptiæ demonstrant—a maxim by which sanction is frequently given to a palpable falsehood. By recent decisions, the severity of this rule has, however, been relaxed; it being now settled, that though marriage is to be considered as presumptive proof of filiation, it may be rebutted by evidence of the impossibility of any connexion having taken place.
In France, a mode of punishment has been employed, which, it is true, without any such pretence as that of destroying the fact of parentage, endeavoured, as far as might be, to abolish all trace of it, by imposing on the person in question the obligation of changing his name.*
The same punishment has been employed in Portugal.†
The punishment consisting in the forfeiture of credibility is another example, no less remarkable, of an attempt to exercise a despotic controul over the opinions of men. As part of the punishment for many sorts of offences, which do not import any want of veracity, the offender is declared to have lost all title to credence: the visible sign of this punishment is the not being permitted to depose in a court of justice.
The forfeiture of the conjugal condition, at least to a certain extent, is frequently among the consequences of imprisonment, especially when with imprisonment is combined penal labour. This part of the punishment is not formally denounced, but it is not the less real. It is not ever in express terms declared that a man is divested of this condition; but he is in fact precluded from the principal enjoyments of it, and the condition, separate from the pleasures that belong to it, is evidently nothing more than a mere name. The forfeiture is temporary or perpetual, according as the imprisonment is either one or the other.
Condition of Liberty.
Liberty being a negative idea—exemption from obligation—it follows, that the loss of liberty is a positive idea. To lose the condition of a freeman, is to become a slave. But the word slave, or state of slavery, has not any very definite meaning which serves to designate that condition as existing in different countries. There are some countries in which slavery is unknown. In countries in which slavery is in use, it exists under different forms, and in different degrees. The pain of servitude would be different, according to the class to which the offender might be aggregated.
Slaves are of two classes: they may belong to the government or to individuals.
The condition of public slaves, determined by regulation, fixing the nature and amount of the work, and the coercive punishments by which the performance of it may be compelled, is not distinguishable from the condition of persons condemned for life to penal labour: if there exist no such regulations, it varies little from private slavery. A public slave, unprotected by any such regulations, is placed under the despotic controul of an overseer, who is bound to employ him, for the benefit of the public, in a certain sort of occupation: this power, arbitrary as it is, does not extend to life and death. This condition varies very little from that of private slavery. A negro, for example, employed upon a plantation belonging to the crown, is not from this circumstance in a condition greatly superior to what he would be in if standing in the same relation to a private individual, who, instead of being his own overseer, employed an agent for that purpose.
The most ready means of forming a correct conception of the condition of slavery, is by considering it, in the first instance, as absolute and unlimited. In this situation the slave is exposed to every possible species of evil. The punishment designated, then, by the expression, forfeiture of liberty, is no other than the being exposed to a greater or less chance, according to the character of the master, of suffering all sorts of evils; that is to say, of all evils resulting from the different modes in which punishment may be inflicted. To form an accurate notion of this situation, all that is required is to glance the eye over all the possible varieties of punishment. The slave, with respect to the individual standing in the condition of master, is absolutely deprived of all legal protection.*
Such is the nature of slavery under its most simple form: such is the nature of the total deprivation of liberty. The different restrictions that may be imposed on the exercise of this power, renders the state of servitude more or less mild.
There are, then, two heads to which the evils resulting from this condition may be referred:—
1. The risk, on the part of the slave, of being subject to every possible evil, with the exception of such only as the master is expressly prohibited from inflicting; 2. The continuity of the pain, founded on the apprehension of these sufferings.
Condition of Political Liberty.
I shall say but one word upon a subject that would require a volume.
The loss of political liberty is produced by a change in the condition, not merely of any particular individual, but of the whole community. The loss of liberty is the result of a fresh distribution of the power of the governing body—a distribution which renders the choice of the persons, or their measures, less dependent upon the will of the persons governed. A fresh distribution of power depends absolutely upon a corresponding disposition to pay obedience to that fresh distribution. When superior physical force is in the possession of those from whom obedience is demanded, it is evident that the power of commanding can be exercised only in so far as that obedience is rendered. As this disposition to pay obedience may be produced by the conduct of a single individual of the governing class, it may be, and has frequently been said, that a single man has destroyed the constitutional liberty of a whole nation. But if the analysis of such events be followed out, it will be found that this liberty can be destroyed only by the people themselves.
[* ]By the laws of the State of Connecticut (North America)—“If a man and woman who have been divorced shall again cohabit together as man and wife, they shall be punished as adulterers;” and “the punishment for adultery is discretionary whipping, branding in the forehead with the letter A, and wearing a halter about the neck on the outside of the garments, so as to be visible. On being found without the halter, on information and proof made before an assistant or justice of the peace, he may order them to be whipped not exceeding thirty stripes.”—Swift’s Laws of Connecticut, vol. ii. p. 328.
[* ]This was done in the case of Damiens and Ravaillac.
[† ]In the case of certain persons convicted of an attempt against the life of the King.
[* ]Such a condition would be too rigorous for criminals: it is for innocent men that it is reserved.