« AnteriorContinuar »
treasonable conversation, is in many countries punished in the same manner as the actual commission of treason. With regard to all other crimes, the mere design, upon which no attempt has followed, is seldom punished at all, and is never punished severely. A criminal design, and a criminal action, it may be said, indeed, do not necessarily suppose the same degree of depravity, and ought not therefore to be subjected to the same punishment. We are capable, it may be said, of resolving, and even of taking measures to execute, many things which, when it comes to the point, we feel ourselves altogether incapable of executing. But this reason can have no place when the design has been carried the length of the last attempt. The man, however, who fires a pistol at his enemy but misses him, is punished with death by the laws of scarce any country. By the old law of Scotland, though he should wound him, yet, unless death ensues within a certain time, the assassin is not liable to the least punishment. The resentment of mankind, however, runs so high against this crime, their terror for the man who shows himself capable of committing it, is so great, that the mere attempt to commit it ought in all countries to be capital. The attempt to commit smaller crimes is almost always punished very lightly, and sometimes is not punished at all. The thief, whose hand has been caught in his neighbour's pocket before he had taken any thing out of it, is punished with ignominy only. If he had got time to take away an handkerchief, he would have been put to death. The house-breaker, who has been found setting a ladder to his neighbour's window, but had not got into it, is not exposed to capital punishment.
The attempt to ravish is not punished as a rape. The attempt to seduce a married woman is not punished at all, though seduction is punished severely. Our resentment against the person who only attempted to do a mischief, is seldom so strong as to bear us out in inflicting the same punishment upon him, which we should have thought due if he had actually done it. In the one case, the joy of our deliverance alleviates our sense of the atrocity of his conduct; in the other, the grief of our misfortune increases it. His real demerit, however, is undoubtedly the same in both cases, since his intentions were equally criminal; and there is in this respect, therefore, an irregularity in the sentiments of all men, and a consequent relaxation of discipline, in the laws of, I believe, all nations, of the most civilized, as well as of the most barbarous. The humanity of a civilized people disposes them either to dispense with, or to mitigate punishments wherever their natural indignation is not goaded on by the consequences of the crime. Barbarians, on the other hand, when no actual consequence has happened from any action, are not apt to be very delicate or inquisitive about the motives.
The person himself who, either from passion, or from the influence of bad company, has resolved, and perhaps taken meaures to perpetrate some crime, but who has fortunately been prevented by an accident which put it out of his power, is sure, if he has any remains of conscience, to regard this event all his life after as a great and signal deliverance. He can never think of it without returning thanks to Heaven for having been thus graciously pleased to save him from the guilt in which he was just ready to
plunge himself, and to hinder him from rendering all the rest of his life a scene of horror, remorse, and repentance. But though his hands are innocent, he is conscious that his heart is equally guilty as if he had actually executed what he was so fully resolved upon. It gives great ease to his conscience, however, to consider that the crime was not executed, though he knows that the failure arose from no virtue in him. He still considers himself as less deserving of punishment and resentment; and this good fortune either diminishes, or takes away altogether, all sense of guilt. To remember how much he was resolved upon it, has no other effect than to make him regard his escape as the greater and more miraculous: for he still fancies that he has escaped, and he looks back upon the danger to which his peace of mind was exposed, with that terror, with which one who is in safety may sometimes remember the hazard he was in of falling over a precipice, and shudder with horror at the thought.
2. The second effect of this influence of fortune, is to increase our sense of the merit or demerit of actions beyond what is due to the motives or affection from which they proceed, when they happen to give occasion to extraordinary pleasure or pain. The agreeable or disagreeable effects of the action often throw a shadow of merit or demerit upon the agent, though in his intention there was nothing that deserved either praise or blame, or at least that deserved them in the degree in which we are apt to bestow them. Thus, even the messenger of bad news is disagreeable to us, and, on the contrary, we feel a sort of gratitude for the man who brings us good
tidings. For a moment we look upon them both as the authors, the one of our good, the other of our bad fortune, and regard them in some measure as if they had really brought about the events which they only give an account of. The first author of our joy is naturally the object of a transitory gratitude: we embrace him with warmth and affection, and should be glad during the instant of our prosperity, to reward him as for some signal service. By the custom of all courts, the officer, who brings the news of a victory, is entitled to considerable preferments, and the general always chooses one of his principal favourites to go upon so agreeable an errand. The first author of our sorrow is, on the contrary, just as naturally the object of a transitory resentment. We can scarce avoid looking upon him with chagrin and uneasiness; and the rude and brutal are apt to vent upon him that spleen which his intelligence gives occasion to. Tigranes, king of Armenia, struck off the head of the man who brought him the first account of the approach of a formidable enemy. To punish in this manner the author of bad tidings, seems barbarous and inhuman: yet, to reward the messenger of good news, is not disagreeable to us; we think it suitable to the bounty of kings. But why do we make this difference, since, if there is no fault in the one, neither is there any merit in the other? It is because any sort of reason seems sufficient to authorize the exertion of the social and benevolent affections; but it requires the most solid and substantial to make us enter into that of the unsocial and malevolent.
But though in general we are averse to enter into the unsocial and malevolent affections, though we lay it down for a rule that we ought never to approve of their gratification, unless so far as the malicious and unjust intention of the person, against whom they are directed, renders him their proper object: yet, upon some occasions, we relax of this severity. When the negligence of one man has occasioned some unintended damage to another, we generally enter so far into the resentment of the sufferer, as to approve of his inflicting a punishment upon the of fender much beyond what the offence would have appeared to deserve, had no such unlucky consequence followed from it.
There is a degree of negligence, which would appear to deserve some chastisement though it should occasion no damage to any body. Thus, if a person should throw a large stone over a wall into a public street without giving warning to those who might be passing by, and without regarding where it was likely to fall, he would undoubtedly deserve some chastisement. A very accurate police would punish so absurd an action, even though it had done no mischief. The person who has been guilty of it, shews an insolent contempt of the happiness and safety of others. There is real injustice in his conduct. He wantonly exposes his neighbour to what no man in his senses would choose to expose himself, and evidently wants that sense of what is due to his fellow-creatures, which is the basis of justice and of society. Gross negligence therefore is, in the law, said to be almost equal to malicious design.* When any unlucky con* Lata culpa prope dolum est.