Book 7, Chapter 04 : Of the Application of Punishment
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Book 7, Chapter 04
Delinquency and punishment incommensur- able. - External action no proper subject of criminal animadversion - how far capable of proof. - Iniquity of this standard in a moral - and in a political view. - Propriety of a retri- bution to be measured by the intention of the offender considered. - Such a project would overturn criminal law - would abolish punish- ment. - Inscrutability, 1. of motives. - Doubt- fullness of history. - Declarations of sufferers. - 2. of the future conduct of the offender. - Uncertainty of evidence - either of the facts -or the intention. - Disadvantages of the defend- ant in a criminal suit.
A FURTHER consideration, calculated to show not only the absurdity of punishment for example, but the iniquity of punishment in general, is that delinquency and punishment are, in all cases, incommensurable. No standard of delinquency ever has been, or ever can be, discovered. No two crimes were ever alike; and therefore the reducing them, explicitly or implicitly, to general classes, which the very idea of example implies, is absurd. Nor is it less absurd to attempt to proportion the degree of suffering to the degree of delinquency, when the latter can never be discovered. Let us endeavor to clear the truth of these propositions.
Man, like every other machine the operations of which can be made the object of our senses, may, in a certain sense, be affirmed to consist of two parts, the external and the internal. The form which his actions assume is one thing; the principle from which they flow is another. With the former it is possible we should be acquainted; respecting the latter there is no species of evidence that can adequately inform us. Shall we proportion the degree of suffering to the former or the latter, to the injury sustained by the community, or to the quantity of ill intention conceived by the offender? Some philosopher, sensible of the inscrutability of intention, have declared in favor of our attending to nothing but the injury sustained. The humane and benevolent Beccaria has treated this as a truth of the utmost importance, 'unfortunately neglected by the majority of political instituters, and pre served only in the dispassionate speculation of philosophers.1
It is true that we may, in many instances, be tolerably informed respecting external actions, and that there will, at first sight, appear to be no great difficulty in reducing them to general rules. Murder, according to this system, suppose, will be the exertion of any species of action affecting my neighbor so as that the consequences terminate in death. The difficulties of the magistrate are much abridged upon this principle, though they are by no means annihilated. It is well known how many subtle disquisitions, ludicrous or tragical according to the temper with which we view them, have been introduced to determine, in each particular instance, whether the action were or were not the real occasion of the death. It never can be demonstratively ascertained.
But dismissing this difficulty, how complicated is the iniquity of treating all instances alike in which one man has occasioned the death of another? Shall we abolish the imperfect distinctions, which the most odious tyrannies have hitherto thought themselves compelled to admit, between chance-medley, manslaughter and malice prepense? Shall we inflict on the man who, in endeavoring to save the life of a drowning fellow creature, oversets a boat, and occasions the death of a second, the same suffering as on him who, from gloomy and vicious habits, is incited to the murder of his benefactor? In reality, the injury sustained by the community is, by no means, the same as these two cases; the injury sustained by the community is to be measured by the antisocial dispositions of the offender, and, if that were the right view of the subject, by, the encouragement afforded to similar dispositions from his impunity. But this leads us at once from the external action to the unlimited consideration of the intention of the actor. The iniquity of the written laws of society is of precisely the same nature, though not of so atrocious a degree, in the confusion they actually introduce between various intentions, as if this confusion were unlimited. One man shall commit murder to remove a troublesome observer of his depraved disposition, who will otherwise counteract and expose him to the world. A second, because he cannot hear the ingenuous sincerity with which he is told of his vises. A third, from his intolerable envy of superior merit. A fourth, because he knows that his adversary meditates an act pregnant with extensive mischief, and perceives no other mode by which its perpetration can be prevented. A fifth, in defense of his father's life or his daughter's chastity. Each of these men, except perhaps the last, may act either from momentary impulse, or from any of the infinite shades and degrees of deliberation. Would you award one individual punishment to all these varieties of action? Can a system that levels these inequalities, and confounds these differences, be productive of good? That we may render men beneficent towards each other, shall we subvert the very nature of right and wrong? Or is it not this system, from whatever pretenses introduced, calculated in the most powerful manner to produce general injury? Can there be a more flagrant injury than to inscribe, as we do in effect, upon our courts of judgment, "This is the Hall of Justice, in which the principles of right and wrong are daily and systematically slighted, and offenses of a thousand different magnitudes are confounded together, by the insolent supineness of the legislator, and the unfeeling selfishness of those who have engrossed the produce of the general labor to their particular emolument!"
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 offense 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 judgment 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 neighbor 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 judgment 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 inquire 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 offense, 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 inquired 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 amid the first burst of indignation; and it is well if their story be impartially estimated ten years after their body has moldered 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 offense, 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 labors to talk of being put on his trial; but no man ever seriously wished for this ordeal who knew what a trial was.
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