Chapter IX (2)

I presume that nobody after due deliberation would maintain that the moral guilt of the offender is enhanced by the death of him whom he involuntarily happened to kill. Sir James Stephen, nevertheless, makes an attempt to defend, from a moral point of view, the severe English law on the subject, which he thinks "is much to be preferred to the law of France." He asks, "Is there anything to choose morally between the man who violently stabs another in the chest with the definite intention of killing him, and a man who stabs another in the chest with no definite intention at all as to the victim's life or death, but with a feeling of indifference whether he lives or dies?"[135] Perhaps not. But I venture to maintain that there is a considerable moral difference between the man who shoots at another with the definite intention of killing him, and the man who, firing at another's chickens, with the intention of stealing them, accidentally kills the owner whom {240} he does not see. It will perhaps be argued that the law has a utilitarian purpose, its object being to make people more careful. But if this were the case one would expect that the law should punish with equal severity acts which involve the same degree of danger, and which result in similar injuries. To fire at a sparrow may be as dangerous to people's lives as to fire at another person's chicken, and, in the latter case, the danger is hardly increased by the intention to steal the chicken. I take the truth to be this. The degree of punishment corresponds to the degree of indignation aroused by the deed. Public imagination is shocked by the actual event. The agent, being guilty either of criminal intention, or of gross disregard of other people's interests, or of criminal heedlessness, is a proper object of punishment. Owing to that want of discrimination which characterises the popular mind, his guilt is exaggerated on account of the grave consequences of his act; and the result is that he is punished not only for the fault of his will, but for his bad luck as well. Sir James Stephen seems to admit this, when saying that the shock which the offence gives to the public feeling requires that the offender should himself suffer "a full equivalent for what he has inflicted," from which "he ought to be excused only on grounds capable of being understood by the commonest and most vulgar minds."[136] Though thoroughly dissenting from the opinion that criminal law should try to gratify the feelings of "the commonest and most vulgar minds," I think that, as a matter of fact, it is not much above their standard of justice, being in the main an expression of public sentiments.

[Footnote 135: Stephen, _op. cit._ iii. 91 _sq._]

[Footnote 136: _Ibid._ iii. 91.]

* * * * *

In the cases which we have hitherto considered the external event which a person brings about involuntarily, either makes him liable to punishment though he really is free from guilt, or increases his punishment beyond the limits of his guilt. But the influence of chance also shows {241} itself in the opposite way. A person who is guilty of carelessness generally escapes all punishment if no injurious result follows, and an unsuccessful attempt to commit a criminal act, if punished at all, is, as a rule, punished much less severely than the accomplished act.

The Hottentots nowadays punish attempt, but only leniently.[137] The Wadshagga punish it less severely than the accomplished act.[138] Among some of the Marshall Islanders it is not punished at all.[139] The same holds good of the Ossetes[140] and Swanetians[141] of the Caucasus, as also of ancient Russian law.[142] The Teutons, as a general rule, had no punishment for him who tried to do harm, but failed; and if they did punish an unsuccessful attempt, the penalty was out of proportion lenient.[143] This feature of ancient Teutonic law has had a lasting effect upon European legislation, largely through the influence it exercised upon the Italian jurists of the Middle Ages,[144] whose theories laid the foundation of modern laws and doctrines on attempt. In conformity with the Roman law, they held attempts to commit crimes to be punishable, and in atrocious cases they even admitted that the attempt might be subject to the same punishment as the accomplished crime. But their general theory was that it should be punished less severely, and that the penalty should be lenient in proportion as the actual deed was remote from the act intended.[145] These views were generally adopted by the later legislation. Among present European lawbooks, the French Code Pénal[146] is almost the only one that punishes an attempt {242} with the same severity as the finished crime.[147] And the French law on the subject is of modern origin; before the year IV. the present rule was applied only to the _conatus proximus_ in a few specified cases of a very heinous character.[148]

[Footnote 137: Kohler, in _Zeitschr. f. vergl. Rechtswiss._ xv. 353.]

[Footnote 138: Merker, quoted by Kohler, _ibid._ xv. 63.]

[Footnote 139: Kohler, _ibid._ xiv. 418.]

[Footnote 140: Kovalewsky, _Coutume contemporaine_, p. 296 _sq._]

[Footnote 141: Dareste, _Nouvelles études d'histoire du droit_, p. 237.]

[Footnote 142: Kovalewsky, _op. cit._ pp. 291, 299.]

[Footnote 143: Wilda, _op. cit._ p. 598 _sqq._ Zachariä, _Die Lehre vom Versuche der Verbrechen_, i. 164 _sqq._; ii. 130 _sq._ Brunner, _Deutsche Rechtsgeschichte_, ii. 558 _sqq._ Pollock and Maitland, ii. 475, 509.]

[Footnote 144: Seeger, _Versuch der Verbrechen in der Wissenschaft des Mittelalters_, p. 8.]

[Footnote 145: Zachariä, _op. cit._ i. 169; ii. 141. von Feuerbach-Mittermaier, _Lehrbuch des Peinlichen Rechts_, p. 74.]

[Footnote 146: _Code Pénal_, art. 2: "Toute tentative de crime qui aura été manifestée par un commencement d'exécution, si elle n'a été suspendue ou si elle n'a manqué son effet que par des circonstances indépendantes de la volonté de son auteur, est considérée comme le crime même."]

[Footnote 147: Chauveau and Hélie, _Théorie du Code Pénal_, i. 347 _sq._]

[Footnote 148: _Ibid._ i. 337 _sq._]

Besides the provision of the Code Pénal concerning attempt, there are a few other exceptions, of an earlier date, to the general rule. The Romans seemed to have followed the principle "dolus pro facto accipitur,"[149] at least if the crime attempted was a serious one.[150] A somewhat similar line was adopted by ancient Irish law. The general impression produced by the rules in the commentary to the Book of Aicill is, that the attempt to commit an injurious act was treated as equivalent to its commission, unless the result was very insignificant. Thus, if an attempt was made to slay, or to inflict an injury which would endure for life, and blood was shed, the fine was the same as if the attempt had succeeded; whereas, if the injury did not amount to the shedding of blood, the fine was reduced one-half.[151] And if a man went to kill one person and killed another by mistake, a fine for the intention, in addition to the fine due to the friends of the murdered man, was due to him whose death was intended, even though no injury was actually done to him.[152] In England, at the end of the Middle Ages, the will was taken for the deed in cases of obvious attempts to murder; but this rule appears to have been considered too severe--even in an age when death was the common punishment for felony--and to have fallen into disuse several centuries ago.[153]

[Footnote 149: _Digesta_, xlviii. 8. 7.]

[Footnote 150: Seeger, _Versuch der Verbrechen nach römischcm Recht_, pp. 1, 2, 49. _Idem_, _Versuch der Verbrechen in der Wissenschaft des Mittelalters_, p. 9. Mommsen, _Römisches Strafrecht_, p. 97 _sq._ Apuleius, _Florida_, iv. 20:--"In maleficiis etiam cogitata scelera non perfecta adhuc vindicantur, cruenta mente, pura manu. Ergo sicut ad poenam sufficit meditari punienda."]

[Footnote 151: _Ancient Laws of Ireland_, iii. pp. cviii. _sq._ 139.]

[Footnote 152: Cherry, _Growth of Criminal Law in Ancient Communities_, p. 32.]

[Footnote 153: Stephen, _op. cit._ ii. 222 _sq._ Thomas Smith, _Common-wealth of England_, p. 194 _sq._]

{243} The question, which attempts should be punished, and even the elementary question, what constitutes an attempt, have been answered differently by different jurists and legislators.[154] In England all attempts whatever to commit indictable offences, whether felonies or misdemeanours, are punishable by law.[155] The French[156] and German[157] codes, on the other hand, do not punish, except in a few particular cases, attempts to commit _délits_ or _Verbrechen_, that is, what the English jurists would describe as misdemeanours.

[Footnote 154: See Cohn, _Zur Lehre vom versuchten und unvollendeten Verbrechen_, i. 6 _sqq._]

[Footnote 155: Stephen, _op. cit._ ii. 224.]

[Footnote 156: _Code Pénal_ art. 3.]

[Footnote 157: _Strafgesetzbuch_, art. 43.]

Again, should a person be punished for attempting to commit a crime in a manner in which success is physically impossible, as if he attempts to steal from a pocket which is empty, or puts into a cup pounded sugar which he believes to be arsenic? This question has given rise to a whole literature. Seneca's statement that "he who mixes a sleeping draught, believing it to be poison, is a poisoner,"[158] seems to have had the support of Roman law.[159] In England, some time ago, the man who attempted to pick an empty pocket, was not held liable for an attempt to steal;[160] but this case has been overruled, and it appears now to be the law that an indictment would lie for such an attempt.[161] According to the French[162] and Italian[163] codes, it would not be punished, according to some German law-books, it would;[164] whilst the Strafgesetzbuch contains no special provisions for attempts of a similar character.

[Footnote 158: Seneca, _De beneficiis_, v. 13. _Cf._ _Idem_, _Ad Serenum_, 7.]

[Footnote 159: Seeger, _Versuch nach römischem Recht_, p. 30.]

[Footnote 160: Stephen, _op. cit._ ii. 225.]

[Footnote 161: Harris, _Principles of the Criminal Law_, p. 209 n. _c._]

[Footnote 162: Stephen, _op. cit._ ii. 225.]

[Footnote 163: Alimena, in _Le droit criminel des états européens_, ed. by von Liszt, p. 123.]

[Footnote 164: von Feuerbach-Mittermaier, _op. cit._ p. 76. Cohn, _op. cit._ i. 14.]

Finally there are different rules as to the stage at which an attempt begins to be criminal, or as to the distinction between attempts and acts of preparation. The Romans, it is supposed, drew no such distinction.[165] The French law regards as permissible acts of preparation many {244} things which in England would be punished as attempts.[166] In England lighting a match with intent to set fire to a haystack has been held to amount to a criminal attempt to burn it, although the defendant blew out the match on seeing that he was watched. But it was said in the same case that, if he had gone no further than to buy a box of matches for the purpose, he would not have been liable, the act being too remote from the offence to be criminal.[167] "Liability will not begin until the offender has done some act which not only manifests his _mens rea_ but also goes some way towards carrying it out."[168]

[Footnote 165: Seeger, _Versuch nach römischem Recht_, p. 49.]

[Footnote 166: Chauveau and Hélie, _op. cit._ i. 357 _sqq._ Stephen, _op. cit._ ii. 226.]

[Footnote 167: Holmes, _Common Law_. p. 67 _sq._]

[Footnote 168: Kenny, _op. cit._ p. 79.]

If we go a step further, we come to designs unaccompanied by any attempt whatever to realise them. The laws of all countries agree as to the principle that an outward event is requisite for the infliction of punishment. "Cogitationis p[oe]nam nemo patitur."[169]

[Footnote 169: _Digesta_, xlviii. 19. 18.]

This fact again illustrates the influence which external deeds exercise upon the moral feelings of men. In the average man moral emotions are hardly ever called into existence by calm and penetrating reflection. There are certain phenomena which for some reason or other are apt to arouse in him such emotions, but he does not seek for them. They must force themselves upon his mind, and the more vigorously they do so, the stronger are the emotions they excite. Nothing makes a greater impression on him than facts which are perceptible by the senses. He will admit that an intention, or even a mere wish, to do something wrong is wrong by itself, but an outward event is generally needed for shaking him up. This, I think, is the original reason why persons have not been punished for intentions unaccompanied by external deeds. No doubt, the principle that "the thought of man shall not be tried," is strongly supported by the fact that, as a mediæval writer puts it, "the devil himself knoweth not the thought of man."[170] But considering how ready people {245} have been to presume guilt in cases of unintentional injuries, it seems very incredible that they originally refrained from punishing bare intentions merely on account of insufficient evidence. Indeed, as an exception to the rule, in a few cases when the crime designed is regarded with extreme horror, the very intention may give such a shock to public imagination as to call for punishment.

[Footnote 170: Quoted by Pollock and Maitland, _op. cit._ ii. 474.]

According to Chinese law, "any person convicted of a design to kill his or her father or mother, grandfather or grandmother, whether by the father's or mother's side; and any woman convicted of a design to kill her husband, husband's father or mother, grandfather or grandmother, shall, whether a blow is, or is not struck in consequence, suffer death by being beheaded."[171] This exceptional law obviously owes its origin to the extreme reverence in which parents and ancestors are held by the Chinese, and to the wife's subjection to her husband. In mediæval laws referring to heresy we have another instance of punishment being inflicted for a mere state of mind without any corresponding act. According to Julius Clarus, this exception to the rule is due to the fact that the crime of heresy itself consists in "sola mentis cogitatione."[172] But the real reason why the law in this case troubled itself about men's thoughts, and even allowed them to be put on their trial for their tacit opinions on bare suspicion, is the detestation in which heresy was held and the extreme attention it attracted. By all this, of course, I do not mean to deny that a judicious and enlightened legislator may find other grounds for taking no notice of mere intentions than their inability to arouse public indignation. I only speak of matters of fact.

[Footnote 171: _Ta Tsing Leu Lee_, sec. cclxxxiv. p. 305.]

[Footnote 172: Julius Clarus, _Practica Criminalis_, qu. 91 (_Opera omnia_, ii. 625).]

Again, as regards acts of preparation and many cases of unsuccessful attempts, it may be said that the agent perhaps would have altered his mind before he came to the point, or that the failure of his attempt was possibly due {246} to a change of intention in the last moment.[173] But there are innumerable cases in which the attempt, with no less certainty than the accomplished crime, displays a criminal intention which is final. And it is particularly instructive to note that, among the very peoples who treat unintentional injuries with the greatest severity, unsuccessful attempts are treated with the greatest leniency. This is well illustrated by a comparison between Teutonic and Roman law; in either case the former chiefly looks at the event, the latter chiefly at the intention of the agent. If there is no punishment for a bare attempt to commit a crime, that is because such an attempt makes no impression on the public. If an attempt is punished more heavily according as it is more advanced, that is because it calls forth greater indignation in proportion as it comes near to the crime intended. And if even the _conatus proximus_ is punished with less severity than the accomplished crime, that is because the indignation it evokes is less. This explanation is corroborated by concessions made by theorisers who have in vain endeavoured to find more rational grounds for existing laws on attempt. They have ultimately found it necessary to resort to phrases such as "the natural sense of justice," or to appeal to the feelings of the multitude.[174] {247} M. Rossi observes, "Nous pensons que le sens commun et la conscience publique ont constamment tenu le même langage. 'Le délit n'a pas été consommé, donc la punition doit être moindre.' Cette idée de proportion matérielle, ce sentiment de justice, grossière j'en conviens, est naturel à l'homme."[175] This is the view taken by the unreflecting moral consciousness. To him whose feelings are tempered by thought, "a man," as Seneca says, "is no less a brigand, because his sword becomes entangled in his victim's clothes, and misses its mark."[176]

[Footnote 173: As a rule, the man who voluntarily desists from the attempt to commit a crime would not be punished at all (see Seeger, _Versuch nach römischem Recht_, p. 50; Charles V.'s _Peinliche Gerichts Ordnung_, art. 178; the French _Code Pénal_, art. 2; the Italian _Codice Penale_, art. 61; Finger, _Compendium des österreichischen Rechtes--Strafrecht_, i. 181; and, for various German laws, Zachariä, _op. cit._ ii. 311 _sq._, and Cohn, _op. cit._ i. 12 _sq._), or he would be punished more leniently than if there had been no such desistance (Zachariä, ii. 239, _sqq._ Cohn, i. 12 _sq._). On this subject see also Herzog, _Rücktritt vom Versuch und Thätige Reue_, _passim_.]

[Footnote 174: Lelièvre, _De conatu delinquendi_, p. 361 (quoted by Zachariä, _op. cit._ ii. 66, n. 2): "Ceterum libenter fateor, me potius sentire aliquam necessitatem paululum levius in perfectum crimen ac in maleficium consummatum animadvertendi, quam reddere posse claram necessitates rationem." Abegg, _Die verschiedenen Strafrechtstheorieen_, p. 65: "Für uns folgt aber jene nothwendige Beobachtung der concreten Unterschiede, in dem Gebiete der Erscheinung, nach der aus dem Gerechtigkeitsprincipe abgeleiteten Regel, dass Jeder für _seine That_, und was er _verdient_ habe, leiden solle." Zachariä, _op. cit._ ii. 51:--"So macht sich in dem natürlichen Gerechtigkeits-Gefühl des Einzelnen und des ganzen Volkes auch von selbst die Unterscheidung zwischen der Strafe des vollendeten und der des blos versuchten Verbrechens geltend. . . . Es kann freilich seyn, dass der grösste Theil der Menschen für ein solches natürliches Gefühl keine Gründe anzugeben vermag; allein das Strafrecht, welches ja gerade auf die grosse Menge zu wirken hat, kann dessenungeachtet solche unwillkürlich im Volke sich geltend machende Ansichten nicht unberücksichtigt lassen." _Cf._ also Finger, _op. cit._ i. 177.]

[Footnote 175: Rossi, _Traité de droit pénal_, ii, 318.]

[Footnote 176: Seneca, _Ad Serenum_, 7.]

* * * * *

In the same way as moral indignation, is moral approval influenced by external events. Though we would not praise a person for some deed of his which we clearly recognise to reflect no merit on his will, the benefits which result from a good act easily induce us to exaggerate the goodness of the agent. On the other hand, it is success alone that confers upon a man the full reward which he deserves; good intentions without corresponding deeds meet with little applause even when the failure is due to mere misfortune. "In our real feeling or sentiment," Hume observes, "we cannot help paying a greater regard to one whose station, joined to virtue, renders him really useful to society, than to one who exerts the social virtues only in good intentions and benevolent affections."

* * * * *

It is thus only from want of due reflection that moral judgments are influenced by outward deeds. Owing to its very nature, the moral consciousness, when sufficiently influenced by thought, regards the will as the only proper object of moral disapproval or moral praise. That moral qualities are internal, is not an invention of any particular moralist or any particular religion; it has been recognised by thoughtful men in many different countries and different {248} ages. "He that is pure in heart is the truest priest," said Buddha.[177] In the Taouist work, 'Kan ying peen,' it is written:--"If you form in your heart a good intention, although you may not have done any good, the good spirits follow you. If you form in your heart a bad intention, although you may not have done any harm, the evil spirits follow you."[178] According to the Thâi-Shang, mere wishes are sufficient to constitute badness.[179] One of the Pahlavi texts puts the following words into the mouth of the Spirit of Wisdom:--"To be grateful in the world, and to wish happiness for every one; this is greater and better than every good work."[180] God, says the Koran, "will not catch you up for a casual word in your oaths, but He will catch you up for what your hearts have earned."[181] According to the Rabbis, the thought of sin is worse than sin, and an unchaste thought is a "wicked thing."[182] It was an ancient Mexican maxim that "he who looks too curiously on a woman commits adultery with his eyes"[183]--a striking parallel to the passage in St. Matthew v. 28. "Voluntas remuneratur, non opus," says the Canonist. "Licet gladio non occidat, voluntate tamen interficit." "Non ideo minus delinquit, cui sola deest facultas."[184]

[Footnote 177: Hopkins, _Religions of India_, p. 319.]

[Footnote 178: Douglas, _Confucianism and Taouism_, p. 270.]

[Footnote 179: _Thâi-Shang_, 4.]

[Footnote 180: _Dînâ-î-Maînôgî Khirad_, lxiii. 3 _sqq._ _Cf._ _ibid._ i. 10, where it is said that the good work which a man does unwittingly is little of a good work, though the sin which a man commits unwittingly amounts to a sin in its origin.]

[Footnote 181: _Koran_, ii. 225. _Cf._ Ameer Ali, _Ethics of Islâm_, p. 26.]

[Footnote 182: Schechter, in Montefiore, _op. cit._ p. 558. _Cf._ Deutsch, _Literary Remains_, p. 52.]

[Footnote 183: Sahagun, _Historia general de las cosas de Nueva España_, vi. 22, vol. ii. 147: "Dice el refran que el _que curiosamente mira á la muger adultéra_ con la vista."]

[Footnote 184: Gratian, _Decretum_, ii. 33. 3. 25, 30, 29.]