But suppose, secondly, that we were to take the
intention of the offender, and the future injury to be apprehended, as the standard of
improvement. This would no doubt be a considerable improvement. This would be
the true mode of reconciling punishment and justice, if, for reasons already
assigned, they were not, in their own nature, incompatible. It is earnestly to
be desired that this mode of administering retribution should be seriously
attempted. It is hoped that men will one day, attempt to establish an accurate
criterion, and not go on for ever, as they, have hitherto done, with a sovereign
contempt of equity and reason. This attempt would lead, by a very obvious
process, to the abolition of all punishment.
It would immediately lead to the abolition of all criminal law. An
enlightened and reasonable judicature would have recourse, in order to decide
upon the cause before them, to no code but the code of reason. They would feel
the absurdity of other men's teaching them what they should think, and pretending
to understand the case before it happened, better than they who had all the
circumstances under their inspection. They would feel the absurdity of bringing
every offence to be compared with a certain number of measures previously
invented, and compelling it to agree with one of them. But we shall shortly have
occasion to return to this topic.2
The great advantage that would result from men's determining to govern
themselves, in the suffering to be inflicted, by the motives of the offender, and
the future injury to be apprehended, would consist in their being taught how vain
and presumptuous it is in them to attempt to wield the rod of retribution. Who
is it that, in his sober reason, will pretend to assign the motives that
influenced me in any article of my conduct, and upon them to found a grave,
perhaps a capital, penalty against me? The attempt would be iniquitous and
absurd, even though the individual who was to judge me had made the longest
observation of my character, and been most intimately acquainted with the series
of my actions. How often
does a man deceive himself in the motives of his conduct, and assign to one
principle what, in reality, proceeded from another? Can we expect that a mere
spectator should form a judgement sufficiently correct, when he who has all the
sources of information in his hands is nevertheless mistaken? Is it not to be
this hour a dispute among philosophers whether I be capable of doing good to my
neighbour for his own sake? 'To ascertain the intention of a man, it is
necessary to be precisely informed of the actual impression of the objects upon
his senses, and of the previous disposition of his mind, both of which vary in
different persons, and even in the same person at different times, with a
rapidity commensurate to the succession of ideas, passions and circumstances.'3
Meanwhile the individuals whose office it is to judge of this inscrutable mystery
are possessed of no previous knowledge, utter strangers to the person accused,
and collecting their only materials from the information of two or three ignorant
and prejudiced witnesses.
What a vast train of actual and possible motives enter into the history of a
man, who has been incited to destroy the life of another? Can you tell how much
in these there was of apprehended justice, and how much of inordinate
selfishness? How much of sudden passion, and how much of rooted depravity? How
much of intolerable provocation, and how much of spontaneous wrong? How much of
that sudden insanity which hurries the mind into a certain action by a sort of
incontinence of nature, almost without any assignable motive, and how much of
incurable habit? Consider the uncertainty of history. Do we not still dispute
whether Cicero were more a vain or a virtuous man, whether the heroes of ancient
Rome were impelled
by vain glory or disinterested benevolence, whether Voltaire were the stain of
his species, or their most generous and intrepid benefactor? Upon these subjects
moderate men perpetually quote the impenetrableness of the human heart. Will
moderate men pretend that we have not an hundred times more evidence upon which
to found our judgement in these cases than in that of the man who was tried last
week at the Old Bailey? This part of the subject will be put in a striking light
if we recollect the narratives that have been published by condemned criminals.
In how different a light do they place the transactions that proved fatal to
them, from the construction that was put upon them by their judges? And yet
these narratives were written under the most awful circumstances, and many of
them without the least hope of mitigating their fate, and with marks of the
deepest sincerity. Who will say that the judge, with his slender pittance of
information, was more competent to decide upon the motives than the prisoner
after the severest scrutiny of his own mind? How few are the trials which an
humane and just man can read, terminating in a verdict of guilty, without feeling
an uncontrollable repugnance against the verdict? If there be any sight more
humiliating than all others, it is that of a miserable victim acknowledging the
justice of a sentence against which every enlightened spectator exclaims with
horror.
But this is not all. The motive, when ascertained, is a subordinate part of
the question. The point upon which only society can equitably animadvert, if it
had any jurisdiction in the case, is a point, if possible, still more inscrutable
inscrutable than that of which we have been treating. A legal inquisition into
the minds of men, considered by itself, all rational enquirers have agreed to
condemn. What we want to ascertain is not the intention of the offender, but the
chance of his offending again. For this purpose we reasonably enquire first into
his intention. But, when we have found this, our task is but begun. This is one
of our materials, to enable us to calculate the
probability of his repeating his offence, or being imitated by others. Was this
an habitual state of his mind, or was it a crisis in his history likely to remain
an unique? What effect has experience produced on him; or what likelihood is
there that the uneasiness and suffering that attend the perpetration of eminent
wrong may have worked a salutary change in his mind? Will he hereafter be placed
in circumstances that shall impel him to the same enormity? Precaution is, in
its own nature, a step in a high degree precarious. Precaution that consists in
inflicting injury on another will at all times be odious to an equitable mind.
Meanwhile, be it observed that all which has been said upon the uncertainty of
crime tends to aggravate the injustice of punishment for the sake of example.
Since the crime upon which I animadvert in one man can never be the same as the
crime of another, it is as if I should award a grievous penalty against persons
with one eye, to prevent any man in future from putting out his eyes by design.
One more argument, calculated to prove the absurdity of the attempt to
proportion delinquency and suffering to each other, may be derived from the
imperfection of evidence. The veracity of witnesses will, to an impartial
spectator, be a subject of continual doubt. Their competence, so far as relates
to just observation and accuracy of understanding, will be still more doubtful.
Absolute impartiality it would be absurd to expect from them. How much will
every word and every action come distorted by the medium through which it is
transmitted? The guilt of a man, to speak in the phraseology of law, may be
proved either by direct or circumstantial evidence. I am found near to the body
of a man newly murdered. I come out of his apartment with a bloody knife in my
hand, or with blood upon my clothes. If under these circumstances, and
unexpectedly charged with murder, I falter in my speech, or betray perturbation
in my countenance, this is in additional proof. Who does not know that there is
not a man in England, however blameless a
life he may lead, who is secure that he shall not end it at the gallows? This
is one of the most obvious and universal blessings that civil government has to
bestow. In what is called direct evidence, it is necessary to identify the
person of the offender. How many instances are there upon recond of persons
condemned upon this evidence who, after their death, have been proved entirely
innocent? Sir Walter Raleigh, when a prisoner in the Tower, heard
some high words accompanied with blows under his window. He enquired of several
eye-witnesses, who entered his apartment in succession, into the nature of the
transaction. But the story they told varied in such material circumstances that
he could form no just idea of what had been done. He applied this to prove the
uncertainty of history. The parallel would have been more striking if he had
applied it to criminal suits.
But, supposing the external action, the first part of the question to be
ascertained, we have next to discover through the same garbled and confused
medium the intention. How few men should I choose to entrust with the drawing up
a narrative of some delicate and interesting transaction of my life? How few,
though, corporally speaking, they were witnesses of what was done, would justly
describe my motives, and properly report and interpret my words? Yet, in an
affair that involves my life, my fame and future usefulness, I am obliged to
trust to any vulgar and casual observer.
A man properly confident in the force of truth would consider a public libel
upon his character as a trivial misfortune. But a criminal trial in a court of
justice is inexpressibly different. Few men, thus circumstanced, can retain the
necessary presence of mind, and freedom from embarrassment. But if they do, it
is with a cold and unwilling ear that their tale is heard. If the crime charged
against them be atrocious, they are half condemned in the passions of mankind
before their cause is brought to a trial. All that is interesting to them is
decided amidst the first burst of indignation; and it is well if their story
be impartially estimated ten years after their body has mouldered in the
grave. Why, if a considerable time elapse between the trial and the execution,
do we find the severity of the public changed into compassion? For the same
reason that a master, if he do not beat his slave in the moment of resentment,
often feels a repugnance to the beating him at all. Not so much, perhaps, as is
commonly supposed, from forgetfulness of the offence, as that the sentiments of
reason have time to recur, and he feels, in a confused and indefinite manner, the
injustice of punishment. Thus every consideration tends to show that a man tried
for a crime is a poor deserted individual, with the whole force of the community
conspiring his ruin. The culprit that escapes, however conscious of innocence,
lifts up his hands with astonishment, and can scarcely believe his senses, having
such mighty odds against him. It is easy for a man who desires to shake off an
imputation under which he labours to talk of being put on his trial; but no man
ever seriously wished for this ordeal who knew what a trial was.
Footnotes
1Questa è una di quelle palpabili verità, che per una maravigliosa
combinazione di circonstanze non sono con decisa sicurezza conosciute, che da
alcuni pochi pensatori uomini d'ogni nazione, e d'ogni secolo.' Dei Delitti e
delle Pene.
2Chap. VIII.
3'Questa [l'intenzione] dipende dalla impressione attuale degli iggetti, e
dalla precedente disposizione della mente: esse variano in tutti gli uomini e in
ciascun uomo colla velocissima successione delle idee, delle passioni, e delle
circostanze.' He adds, 'Sarebbe dunque necessario formare non solo un codice
particolare per ciascun cittadino, ma una nuova legge ad ogni deltitto.'
Dei Delitti e delle Pene.
To Book VII, Chapter V.
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