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 endeavour 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 favour 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 institutors, and pre served only in the dispassionate speculation of philosophers.
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 neighbour 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 endeavouring 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 vices.
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 defence 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 pretences 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 judgement, "This is the Hall of Justice, in which the principles of right and wrong are daily and systematically slighted, and offences 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 labour 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.