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.
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.'
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.