Antonella Bettoni (Università degli Studi di Macerata, Italy):

Fama, shame punishment and metamorphoses in criminal justice (Fourteenth - Seventeenth centuries)

A city in the North of Italy, a train station, a subway to the platforms with its walls covered in writings, slogans, scribbles and drawings like many others, a passer-by’s comment: «If I caught those who wrecked this place, I would chain them to the wall and make them clean it with their tongue!». This statement, in all its harshness, gives rise to a series of considerations.

First of all, we can consider it a sort of voice of the community which makes itself heard and asks to be entrusted with some forms of participation in the right of punishment, given that the State is, by now, ineffectual and unable to impose the respect of certain norms of civil behaviour.

Then, the kind of punishment which the passer-by would like to inflict, falls rightly within the category of shame punishments because of the method of its execution. Indeed, it is not simply a matter of making the wall clean again, washing away the graffiti with a detergent or giving it a coat of paint, rather the cleaning must be done by the offenders’ tongue, chained to the wall and on public view. That passer-by probably did not know he was evoking a punitive system which was still used up to a couple of centuries ago, a punitive system which implied a large community participation, a punitive system which has been, in the end, overcome by the exclusive attribution of the right of punishment to the State.

Finally, the passer-by’s statement recalls the question regarding the opportunity, or otherwise, of starting to use shame punishments as substitutes for imprisonment again. Such a question produced a lively debate among jurists, psychologists and philosophers in the United States of America around the nineties of the Twentieth century¹. Martha Nussbaum, one of the most influential American contemporary philosophers who deals with politics and law, in her volume Hiding from humanity² reconstructs the debate – providing sound points of interpretation – between Communitarians³, who sustain the necessity of starting to use shame punishment again, and Liberals, who instead hold that going back to shame punishment is useless and harmful to a certain extent.

According to Communitarians the reason for social disorder and for today’s decline is represented by the fact that people have no inhibitions, therefore they believe that, in order to restore values pertaining to family and social order, deviant individuals should be stigmatised. Kahan, a criminalist, who was one of the most authoritative voices of Communitarian theories before he revised his position, stated that since society reaffirms its fundamental values by punishing criminals, it does so publicly when using shame punishments: he who is humiliated in public, «cannot hide [and] his offense is exposed to the gaze of others»⁴. Moreover shame penalties have a strong deterrent effect and can better fit the crime.

Liberals instead question themselves first of all on the opportunity for liberal democracies to inflict such punishments and then on the benefits, or else that the State could gain inflicting shame punishments. Moreover, they state that western legal systems cannot stand the infliction of shame penalties because they have already «articulated the distinction between shame and guilt. Shame … pertains to a trait or feature of the person, whereas guilt pertains to an act»⁵. Therefore they raise five objections against this kind of sanction.

The first objection concerns the fact that shame penalties intend to hit human dignity, they do not punish the criminal deed; rather they indicate a deviant identity to the others, they humiliate and degrade the whole person, marking him as a bad person and creating a “spoiled identity”⁶. Shame penalties take away a fundamental good from the individual, making him a sort of sub-individual and carrying away his possibilities of redemption and reintegration into society.

The second objection, formulated by James Whitman, a jurist and a legal historian, underlines the fact that shame penalties are a kind of “mob justice”, since they encourage the public community to punish the criminal and therefore they are not a trustable system of punishment⁷.

The third objection, made by Eric Posner, a jurist and a legal philosopher, has its roots in history. History provides us with evidence for understanding that shame punishments failed their purpose. Indeed, they often stray from punishing crimes to punishing individuals who are nonconformist or at the margins of society and from whom the community tries to differentiate and protect itself⁸.

The fourth objection is sustained by James Gilligan, a psychologist. He denies that shame punishments have a strong deterrent power. He, indeed, believes that people who have been humiliated publicly have great difficulties in integrating themselves again into society, they become more and more alienated, tend to relapse into crime and associate among themselves. Inflicting a shame penalty, therefore, produces crime more so than reduce it⁹.

The fifth objection, proposed by Steven Schulhofer, a criminalist, questions the fact that shaming penalties would be used instead of imprisonment for minor crimes, juvenile offenders or first-time offenders. Actually, states Schulhofer, shame punishments will be used against people who either would not have been punished at all or would have been punished with fines or probation. Therefore, shame punishment would produce an extension of social control¹⁰.

Martha Nussbaum winds up by stating that «we have, then, five arguments against shaming penalties. All of them have independent force, and any one of them might be sufficient to convince us that these penalties are a bad idea»¹¹.

For the purpose of this essay, one of the most interesting lines of reasoning, which surfaces in this debate, is that concerning the intertwining, medleys and implications between State and society in the application of shame punishments and the active role played by the community.

The community is the central element which characterises all medieval experience. Individuality of each person fades and blends with the group to which he belongs. Individuals are important and noteworthy of consideration only in that they belong to a community: a town, a monastery, a guild, a family. The same life of the individual has a meaning only in that it is included and is part of the community life.

In the Middle Ages the power of issuing norms is a widespread power since it belongs to every social body which individuals set up by associating with one another. The Middle Ages have been rightly defined a plural civilisation¹², a civilisation made up of many autonomous groups which coexist and regulate themselves. Therefore there is not a sovereign legislator, the law comes from below, it is the expression of social bodies. The complex duty of harmonising norms and settling jurisdiction conflicts, from the Twelfth century onwards, is up to jurists who are the beating heart of that juridical system and the only ones able to guarantee its functioning.

Justice and its administration are affairs which concern the community. The community protects its members, vouches for them and acts as guarantor for them, and adopts strategies in order to settle conflicts (vendetta, negotiation). The crime therefore concerns the whole community: from the identification of the culprit, to the satisfaction of the victim. An important part of the practised justice is absorbed by vendetta. Vendetta is a right of the victim¹³, and is a practice which involves the community in its entirety: not only the families of the victim and of the offender, but also all the network of friends who are connected with one or the other. Vendetta is not an extraordinary practice, rather it is an ordinary practice of managing conflicts in the medieval communes¹⁴.

Negotiation practices, which see community and families involved not any more only in retaliations and reprisals, but also in transactions, conciliations and negotiations directed to restore peace, go alongside the vendetta. The late Middle Ages are characterised by negotiated justice: a kind of justice with a strong communitarian nature¹⁵. Outsiders, vagrants, idlers, border-line people, in short all those who do not have any certain position within the community, are abandoned to the public justice.

In some cases, community members resort to public justice, leaving behind the strictly private sphere of reparation for a suffered wrong. In these cases, public justice not only has the role of defining and concluding the lawsuit, it also represents a further element which can be evaluated and weighed in the transaction, however public justice can always be stopped by the agreement which the parties have reached.

Also the practices established by the Catholic Church in order to stem heresy and immoral behaviour of the clergy: purgatio canonica¹⁶ and, later in the Thirteenth century, inquisitio¹⁷, fall within a communitarian logic, in that they leave yet an important role to the community. They are indeed activated on the basis of the fama¹⁸, a sort of collective voice with which the whole community indicates the supposed culprit of a misdeed.

The fama is also that which consents the judge to proceed ex officio in the inquisitorial trial which is quickly spreading in all the judging courts throughout Europe. Jurists declare in treatises concerning the ordo iudiciarius that the inquisitorial trial starts fama denunciante (denouncing fama)¹⁹. Jurists then clearly define the characteristics (relative to the number and the quality of the people who spread it and to the place and time of its taking hold) which the fama of the criminal deed must have in order to begin an inquisitorial trial. The defining work of the jurists is necessary in order to guarantee the juridical trustworthiness of the fama.

The fama of the criminal deed must be differentiated from the fama of every single person, the latter as well originates and remains within the community. It is indeed the opinion which the community, and especially a qualified part of it: the boni et honesti viri (good and honest men), has of each of its members. Rightly, it is included among the external goods (bona externa) in the Summa Theologiae of Saint Thomas Aquinas (1225-1274)²⁰. Among them, the fama is considered a good greater than wealth because of its closeness to spiritual goods. From its position among external goods, it derives that, even though everybody is entitled to the fama, however nobody has full power over it. Community has the dominion of man’s fama, individuals can only be the jealous guardians of their fama ²¹. The process that brings to fama formation is taken away from the individual’s control, he can only have a certain influence on it. From his good or bad actions, good or bad fama may come about, the power of activating and determining such potential outcome of theirs lies within the community. Community can get hold of the news of these actions, in certain cases can manipulate their content, and in any case can spread them creating good or bad fama. The fama, in order to be able to be fully structured, needs an effective tool of propagation: the voice, the voice of many people. Once the fama is structured, it adheres to the individual. The division between fama dominion, entrusted to the community, and its safeguard, entrusted instead to individuals, activates a strong social control²², since individuals, having to safeguard their fama, must behave honestly and according to rules socially accepted. It is, however, the community which approves of and supports such behaviour attributing good fama.

It is this precious good of the individual that is affected by infamy and shame punishments and it is clearly understandable how, in this kind of society they have a well defined role and function.

Infamy substantially consists in the loss of one’s good fama, imposes a stigma on him who suffers this kind of punishment, and damages his social identity. According to the classifications elaborated by Glossators in the second half of Twelfth century and during the Thirteenth century – classifications that will have a long life in the Middle Ages – infamy can be of two kinds: infamia iuris (law infamy) and infamia facti (fact infamy). Both have noteworthy juridical consequences, which are heavier in the case of infamia iuris and lighter in the case of infamia facti.

Infamia facti is the border element between infamia iuris, as defined by jurists’ interpretation of Justinian’s norms, and a more general and less definite nonconformity to rules and social behaviour. Infamia facti is inflicted exclusively by the community: it is the social stigma which affects those around whom in the community rumour is spread that they have committed some crime; it is the social stain which dirties those who avoided conviction in a shaming criminal trial (for example in a trial for iniuria) by way of appearing in court with procurator; it is the social discredit which does not abandon those who are publicly blamed by their father or the judge; it is the humiliation which the offender accepts to undergo as part of the victim’s satisfaction in negotiation practices; it is the indelible brand burnt into the flesh of illegitimate children from birth; it is, finally, the mark which colours those who carry on certain jobs considered infamous and dishonouring.

By way of imposing infamia facti the community appropriates the right of punishing and, selecting principles and values that must be protected, administers its own justice. With the infliction of infamia facti the community separates, repels, rejects.

In the Twelfth century Decretists and Glossators include the category of infamia facti in the law and attribute juridical consequences to it. Canon law establishes that those who suffer infamia facti cannot accuse, give testimony or access the holy orders. Whereas according to Glossators, infamia facti prevents access to dignities and reduces the value of trustworthiness of the testimonies given by those who are stricken by it.

Infamia iuris presents an added element if compared with infamia facti: the law. In the lex Praetoris verba of title 2 De iis qui notantur infamia book 3 in Digest, there is a long list of people, indicated by “qui”, who in certain situations are struck by infamia iuris. On this confused grouping Glossators start working, and they, putting together similar cases and separating dissimilar ones, create coherent categories which have an internal eurhythmy of their own. They part infamia iuris into infamia ipso iure, infamia per sententiam and infamia ex genere poenae²³.

The constitutive elements of infamia iuris are essentially two: the law and a crime of one’s own. From their combination derives infamia iuris.

Among the categories of infamia iuris, infamia ipso iure is, without doubt, that which presents more affinities with the infamia facti. It is indeed a sanction foreseen by the law which derives directly from perpetrating certain crimes. The law – strongly felt as expression of the community that follows it – stands alone and alone inflicts the punishment of infamy without the intermediation of the judge. Crimes sanctioned by this kind of infamy are characterised by a high degree of notoriousness and by the capacity of creating social scandal. For these reasons the law can hope in a ready and immediate answer from the community, and this answer arrives as long as the law keeps pace with and is tuned into the common feeling. Naturally, faulty timing in tuning-in between law and common feeling cannot but affect community answer, producing a loss of effectiveness of those norms which continue foreseeing certain criminal deeds as infamatory. In the Twelfth and Thirteenth centuries Glossators, interpreting the Corpus Iuris Civilis and adapting its norms to their time, establish that the following crimes produce infamia ipso iure: prostitution, pimping, adultery, bigamy, sodomy, marriage of the widow during the first year of mourning, usury, circus games and theatre plays. As we can see, they are all “crimes” whose execution is public, they happen under everybody’s eyes and therefore they are able to produce scandal. Avoiding scandal is one of the imperatives of medieval culture about which a lot has been written. In the Twelfth and Thirteenth centuries for ipso iure punishments final judgement of the judge is not required²⁴, indeed as we have already said, infamy derives directly from perpetration of the crime.

The work of the judge, and therefore a final judgement, is instead necessary in order to impose infamia per sententiam. The infamia per sententiam gives the power to inflict infamy to the judge, but his power is submitted to precise limitations. The judge is not free in determining the cases to which he can apply infamy, they are established by the law, anyway the correspondence between the actual criminal deed and the law is left to the judge’s discretionary power (arbitrium)²⁵. In order to inflict infamia per sententiam, not only the factum rei but also the factum iudicis is therefore necessary.

The factum iudicis consists in a final judgement of conviction pronounced for one of the crimes foreseen by law as productive of infamia per sententiam.

All the crimes which undergo an actio famosa, produce infamia per sententiam. By actiones famosae, jurists mean all the judicial proceedings generated by crimes, delicts or contracts which produce infamy if they end with a final judgement of conviction. Actiones famosae include both actiones publicae and actiones privatae. Actiones publicae persecute crimina publica and they are all infamatory. Among them we remember the crime of lese-majesty, murder, parricide, kidnapping, forgery, counterfeiting, public and private violence. Actiones privatae persecute private crimes deriving from criminal deeds and contractual deeds and they are not all infamatory. Usually ex delictis, the judicial proceedings for theft, robbery, iniuria and dolus malus are infamatory, while ex contractibus, the judicial proceedings for mandatus, tutela, depositum and pro socio are infamatory.This is therefore a kind of infamy for whose infliction the community needs the intermediate work of the judge who singles out the culprit. Crimes which produce it do not present the characteristics of notoriousness.

Infamia ex genere poenae puts the decision of imposing infamy, or otherwise, by way of inflicting a shame punishment totally into the hands of the judge. On the basis of a fair evaluation of the crime, its gravity and its circumstances, the judge, in his final judgement can decide to apply a shame punishment even though the crime is not among those that produce infamy. This is a much-debated kind of infamy upon which Glossators discuss at length, because they think, on the one hand, that inflicting infamy only as a consequence of the punishment is inadmissible, on the other that, in such a way, great powers of making people infamous would be conferred to the judge. The difference in duration between infamia per sententiam and infamia ex genere poenae is not an argument able to convince them. Indeed, even though the juridical effects of the former last forever, while those of the latter last only for the duration of the punishment, however the damage of the person’s fama is permanent and therefore the judge has to be extremely cautious in issuing his decision and establishing the punishment to inflict. However, there is more to be said about the infamia ex genere poenae and a reason for its existence can be found in the works of the jurists: Glossators affirm that in order to inflict infamia per sententiam a final judgement (sententia) is indeed necessary.

What would happen if the judge proceeding extra ordinem²⁶ convicts somebody of an infamatory crime by way of a decree (decretum)? The convicted person would avoid infamia iuris. In the Thirteenth century the inquisitorial trial takes its first steps, has not acquired yet a well defined physiognomy, maintains connections with the community and is perceived as more vexing precisely because it lacks an accuser. The accusatory trial is still largely used and is considered the ordinary trial, therefore when the judge proceeds extra ordinem and issues a decree, he keeps the faculty of inflicting infamy when the crime is infamatory resorting to shame punishments²⁷.

The execution of a shame punishment (flogging, pillory) is usually public and the whole community is necessarily part of it. The community is not only the audience, it is instead an indispensable instrument for its execution. If there was no community, shame punishments would have no reason to exist.

Infamia iuris, according to Glossators, makes those on whom it is inflicted unable to accuse, to be witnesses in a trial or in a will, to postulate, to become a lawyer, a judge and an assessor and to accept any dignity (dignitas)²⁸. Canon law establishes as well that those who suffer infamia iuris cannot accuse, postulate, give testimony, become a solicitor, a lawyer or a judge, accept any dignity or access the holy orders. Moreover some of the infamous people – those who have committed a mortal sin – cannot receive the Eucharist²⁹. The social stigma deriving from committing a criminal deed reflects itself in the law and those who bear it find themselves in a juridically limited status.

The use of shame punishment is noteworthily appropriate to a system of negotiated justice, since it refers to a society which is still largely community. The community co-operates with the res publica in matters of social control, in maintaining order, in inflicting punishments. Therefore, shame punishments suit this kind of justice which delegates part of its functions to the community.

Around the end of the Thirteenth century, extraordinary constitutional changes intervene in the layout of city-states, princedoms and kingdoms whose governments undergo a twisting towards centralised forms of power organisation. This constitutional transformation, necessarily concerns the administration of justice which suffers a process of estrangement from the community and of institutionalisation. Nascent States soon realise that justice administration is a major attribute of government power, in that it permits maintaining public order and social control. They vouch for public peace and therefore they tend to consider every offence against it as an offence against the State: it is a primary interest of the res publica not to let any crime go unpunished. The law becomes extraordinarily important for the State that makes it an instrumentum regni, a tool for government. Essential to this purpose is criminal law and criminal procedure. Till that moment, the law happily did without (and developed without) the State, it moulded itself on the society that produced it, being in tune and symbiosis with it and representing its «lasting constitution underneath (and sheltered from) the many episodes of ordinary politics»³⁰.

These changes gradually deprive the community of the right of settling disputes and they progressively lead to the sunset of negotiated justice and to the affirmation of hegemonic justice³¹. The affirmation of hegemonic justice, based on a trial started ex officio by the judge, supported by gathered evidence and crowned by the infliction of a punishment, does not determine the immediate disappearance of negotiated justice. The process is gradual and jurists register it. At the end of the Thirteenth century in his Tractatus de maleficiis, Albertus Gandinus, a jurist that witnesses the transition, states that also in the case of a serious crime, homicide for example, parties can reach a settlement, obtain satisfaction and therefore pacify. Such settlement, however, is not to the detriment of the public justice power of starting an inquisition on the crime and therefore of punishing the culprit³². However, in this phase the inquisitorial trial is still strongly influenced by negotiation practices and it can end with a transaction, though reached thanks to the mediation of the judge.

Moreover the power of the community to avoid that one of its members of good fama is put to torture (privilege of good fama) falls to pieces when, as Albertus Gandinus refers once again, the bad fama of the fact is corroborated by other presumptions and circumstantial evidence³³.

The community sees, therefore, reducing its power of interfering in the criminal trial with the purpose of orientating its outcome, cleverly using witnesses on the fama of the accused and its power is taken away to the advantage of public institutions which have the specific duty of the administration of justice. The administration of justice is gradually institutionalised, and becomes more and more an affair of offices and apparatuses.

Also emblematic is the case of infamia ipso iure. In the Fourteenth century, jurists following the opinion of Baldus de Ubaldis³⁴ reconsider the question referring to the superfluousness of the final judgement for inflicting infamia ipso iure, and declare that such an affirmation has to be interpreted in the sense that the ‘enacting terms’ of the judgement are not necessary. However, they believe that for the production of juridical effects a ‘declaratory’ judgement is necessary³⁵. Such judgement retroacts to the moment of perpetration of the criminal deed, and is required, for example, in order to exclude somebody from testifying. Therefore, the judge assumes control of this form of shame punishment whose infliction was before entrusted to the community.

The community loses its centrality. «Individualistic attitudes surface in the Fourteenth century … in those theological currents of thought which focus on the will as a characterising dimension, and focusing on the will, isolate – or risk to isolate – the individual from other individuals and from the community»³⁶.

Therefore, the establishment of hegemonic justice changes the scenery. Hegemonic justice proceeds from above, from a “State” which claims the right of judging and punishing for itself. Shame punishments are badly suited to it since they necessarily imply a community which takes part in the power of judging and punishing.

Hegemonic justice with its wealth of offices and apparatuses interposes between community and crime, between community and justice administration. This change can be perceived in the official representation of justice, too. In the official paintings and statues of Justice that ornate European churches, squares and public buildings, a blindfold is added to its other two classic attributes: the sword and the scale³⁷.

As stated above, the inquisitorial trial, originally, is strongly linked to fama, a trustable and legally accepted community voice, so much so that it cannot be started without the fama denunciante (denouncing fama). Gradually this power, as well, is taken away from the community, jurists and judges co-operate in strengthening the ex officio procedure, and in the Sixteenth century Julius Clarus, a well known criminalist, in the final paragraph of his Sententiarum receptarum liber quintus, in which he deals with criminal procedure, affirms that fama has by now abandoned the courtrooms³⁸.

Moreover, between the Thirteenth and Seventeenth century a noteworthy erosion of the community power to protect its members intervenes. Such erosion can be tested, for example, comparing two passages written by two outstanding jurists: Albertus Gandinus, whose opinion concerning the role of the bona fama in avoiding torture we saw before, and Prosperus Farinacius who lived between the second half of the Sixteenth century and the first half of the Seventeenth century.

Indeed, Albertus Gandinus’ opinion is still present and is referred to in the Sixteenth century: ius commune does not abandon anything. Instead, like a great river, it carries all that its current gathers up.

Farinacius quotes Albertus’ opinion in his Praxis et Theorica criminalis. In the same passage, however the Roman jurist also refers to an opposite opinio which is shared by a noteworthy number of jurists and which is more reasonable in his judgement: «since, as he says, if the defendant can escape torture because his bona fama has been proved, then defendants will never be put to torture. There is no man, however bad he may be, that does not have two friends ready to testify on his bona fama … The evidence of bona fama … will be useful in that the defendant is tortured more gently, rather than not tortured at all»³⁹. Therefore, the community is no longer able, with two witnesses on the good fama of the accused, to avoid that one of its members is put to torture. It can only obtain the application of a lighter torture. Many elements concur in limiting its power: first of all the cumbersome presence of a hegemonic power which claims certain prerogatives⁴⁰.

The negotiation power of the community is taken away and is substituted with the judge’s final pronouncement. Negotiations, transactions, settlements can be made, but they will be of no consequence for the official justice. Clarus, for example, affirms that a custom which is widespread throughout all the Italian princedoms establishes that the judge can start an inquisitorial trial to prosecute whatever kind of crime, and it is of no importance if the parties have promoted an accusatory trial or have settled the dispute already: the parties’ pacification does not and cannot stop the judge’s inquisitorial action⁴¹. In the Seventeenth century, Carpzov, a well renowned German jurist, declares that the settlement between the offender and the victim does not prejudice the public revenge. The party can indeed give up the prosecution of the crime to his detriment, but not to the respublica’s prejudice⁴². Brunnemann⁴³ agrees with Carpzov, and adds that a settlement with the victim is one of the reasons for beginning an inquisitorial trial⁴⁴. The parties are also not permitted to settle a matter that has already been judged. Indeed, Wesenbeck affirms that since the right of the parties is made certain by the res judicata, the settlement is no longer needed, in that there are no longer dubious and uncertain matters which have to be settled⁴⁵. Brunnemann states that it is not permitted – not even to the judge – to end the proceeding with a settlement. Once the inquisitorial trial is started judges can only inquire, convict or acquit, because to this purpose are they appointed⁴⁶.

Shame punishments inflicted by the law and the community lose some of their significant consequences. For example, with reference to testimony: we saw that infamous people cannot testify in that their words cannot be fully trusted (they lack fides). With a stratagem this obstacle is avoided: the testimony of infamous witnesses can be accepted if it is corroborated by torture⁴⁷. At the beginning of the Seventeenth century, Farinacius complains of the fact that it is not correct to state that infamous witnesses can give testimony if purged with torture, because such a statement means that infamous people can always give testimony if tortured. It is not so, explains the jurist, because they can give testimony only in those cases expressly indicated by the law (when there is no other way to ascertain the truth, and in the crimes of lese-majesty and heresy). Moreover, torture, notices the jurist, does not purge infamy completely and the testimony of infamous people never has the value of full evidence, rather only that of circumstantial evidence. The necessity of specifying the principle could well mean that in practice the other interpretation is followed⁴⁸.

Besides, there is a communis opinio, founded on the sound authority of Baldus⁴⁹ an authoritative Fourteenth-century jurist, which sustains that the testimony of people, infamous by law, can validly give origin to a general inquisition. Farinacius⁵⁰, who on this point agrees with Baldus, refers to and refutes the opinion of those who hold that the testimony of infamous people can be used in order to initiate a special inquisition. He sustains that, if witnesses who are infamous by law testify in cases in which they should not be admitted, their words would be considered only as presumptions⁵¹, with a very limited value of trustworthiness. In the next section, the jurist affirms that the judge can start a general inquisition on the basis of such a presumption⁵² and firmly rejects the hypothesis that on its basis a special inquisition could be started⁵³. Difference of opinions in the juridical doctrine makes us believe that maybe there are different practices followed.

Furthermore, if the judge has the power to judge ex aequitate et sola facti veritate inspecta⁵⁴ (taking only equity and truth into consideration), he may allow infamous people to testify⁵⁵.

The tripartition of infamia iuris elaborated by Glossators is a source of diverging opinions in the Sixteenth and Seventeenth centuries. In treatises of the time dealing with this matter, we can notice the absence of the infamia ex genere poenae. Farinacius in his Praxis et Theorica criminalis affirms that among infamous people because of infamia iuris, there are those who become infamous owing to infamia ipso iure and those who become infamous because of infamia per sententiam⁵⁶. Such bipartition of infamia iuris is preponderant among jurists⁵⁷, and some of them in declaring it give reasons for the absence of the infamia ex genere poenae. Carpzov, for example, even though he recognises that certain punishments, such as whipping and hanging, are considered infamous by popular opinion, sustains that punishment does not make people infamous but rather the cause (causa) to which it is due and therefore a sentence to relegation for a crime which does not generate infamia iuris does not make the convicted party juridically infamous⁵⁸. Some jurists agree with Carpzov⁵⁹. Others affirm that, since the punishment for a crime has a final judgement of conviction as essential prerequisite, it is not the punishment that makes people infamous, but rather the sentence⁶⁰.

For jurists of this time, it is not only a problem of conferring a further power to the judge leaving the decision of inflicting infamia ex genere poenae to his evaluation of the crime and its circumstances, there is also the question of popular opinion as Carpzov well outlines. People cannot make somebody infamous because he suffered whipping or hanging. That which matters is what the law has established about the infamy, or else, of the criminal deed. Therefore it is not only a matter of restricting the power of the judge, but is also a matter of educating people and teaching them that only the law has such power of making somebody infamous. The only source of infamy is law, not the community, or the judge, to whom the law does not give the power to condemn or make an innocent person infamous⁶¹.

The sphere of application of the infamia per sententiam is reduced. The iniuria, for example, keeps on being mentioned among the criminal deeds that can cause infamy, but beside the mention of its infamous character jurists often indicate the path to follow in order to avoid infamy in the case that somebody has the misfortune of being involved in a criminal trial for iniuria. So Aretinus⁶², already in the Fifteenth century suggests that in order to avoid infamy in a trial for iniuria it is enough to appear in court with procurator or to pay the fine before the sentence is issued. There is also a large group of German jurists of a noteworthy calibre⁶³ operating at the end of the Sixteenth century and in the Seventeenth century who affirm that there is a practice in the Reichskammergericht to spare infamy to people convicted of iniuria using a formula included by the judge in the same sentence. Berlich at the beginning of the Seventeenth century refers to the practice in a well articulated way. Among the reasons which justify the preservation of the fama, the jurist indicates the high social costs which the infamous person suffers: he is excluded from colleges, associations, guilds, in short from society⁶⁴. Such power of reserving the fama is a prerogative not only of the judges of the Reichskammergericht given that their sentences cannot be appealed, but according to the practice of the time it is a prerogative also of all the judges of the inferior courts. Berlich ends up saying that the fama cannot be reserved only in the cases of iniuria atrociora.

Moreover, the infamy coming from trials which originate from breaches of contract (ex contractibus) can be avoided if the defendant appears in court with procurator⁶⁵ or if he settles the dispute with the other party by way of a transaction⁶⁶.

The infamia ipso iure maintains its importance given the particular nature of the criminal deeds which it is applied to. Anyway, we may notice that some of them, for example, the marriage of a widow during the first year of mourning or theatre plays, stop generating scandal and they therefore lose their criminal character and are omitted in the lists of the cases causing infamia ipso iure.

There is, nevertheless, a lasting duration of the infamia facti since, being inflicted directly by the people does not see narrowing its range of application following the institutionalisation of justice administration, as instead happens to the infamia iuris which, being connected with the work of the judge, necessarily follows trends of criminal politics.

The infamia facti presents a strange capacity for surviving⁶⁷, an extraordinary resistance and impenetrability even to the orders of power. It shares – with the natural qualities of man – the characteristics of non-modifiability due to external intervention. Therefore, if it is evident that the Prince cannot change the quality of man or woman, old or young, for many jurists⁶⁸ it is also evident that the bad fama cannot be remitted, quashed, cancelled by the Prince or the Pope. They indeed do not have the power to change the vox populi (popular opinion). Farinacius affirms: «However the prince cannot take away or remove the infamia facti, because the opinion of men about the goodness or badness of someone cannot be removed by the prince, neither can the prince make people believe good a man that they believe and want to believe bad»⁶⁹. Nevertheless, the Roman jurist refers also to the existence of a contrary opinion maintained by Oddus Sfortia who, in his Tractatus de restitutione in integrum, dedicates a quaestio⁷⁰ to the matter whether the fama can be given back by the Pope, the College of Cardinals, the bishop, the inquisitor, the emperor, the Roman senate, the judge, the prince, or the lord, and in the next quaestio⁷¹ dispels the doubt, sustaining that the Prince can also give back bona fama (good reputation) if he pleases to do so⁷². However the answer, clearly understandable, takes the Prince’s prerogatives more into consideration than the effective change of popular feeling.

In Germany, many norms are issued with the purpose of sparing defiled trades infamia facti. German jurists are well aware of the fact that such an attempt even though supported by those who carry on those trades⁷³, is not shared by the vast majority of the population, which, notwithstanding the norms issued, continues to consider such individuals infamous⁷⁴ and reserves the privilege of deciding who has to be stricken by infamia facti.

Kathy Stuart, in her Defiled trades and social outcasts⁷⁵, describes such a situation. The social historian reasserts and stresses that which was affirmed by Seventeenth-century German jurists, Stryk⁷⁶ and Heineccius⁷⁷ among others, and that is, that the stigma on these trades comes especially from the members of the town guilds which force those who carry them on to exclusion and separation, often against the express order of governments: «For centuries artisans defied governmental attempts to rehabilitate dishonourable people. From 1548 through the Eighteenth century imperial and local governments regularly issued mandates attempting to cleanse defiled trades of their stigma of dishonor»⁷⁸. Artisans, continues Stuart, appeal to their norms of honour and dishonour in the attempt of keeping areas of corporative autonomy against the growing interference of governments which are more and more authoritarian⁷⁹. This is, therefore, the meaning we must give to her affirmation according to which «State formation, application of “social disciplining” and expansion of dishonour in the early modern period are interdependent historical processes»⁸⁰.

As far as infamy and shame punishments are concerned, we can point out two paths along which States of the early modern period moved: one path is directed towards gradually emptying the infamy of its content, therefore subtracting it of its value (for example, admitting infamous witnesses to testimony and accusation); the other path leads to limiting the sphere of application of infamy to the only cases envisaged by law and sanctioned by the judge’s declaratory pronouncement or by the judge’s sentence (therefore eliminating infamia ex genere poenae and trying to curb infamia facti). More generally, the question of shame punishments falls within criminal politics of the new States directed to taking away the power of justice administration from the community.

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