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 enquire 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 offence, 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 record 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 enquired 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 amidst the first burst of indignation;Chapter nd it is well if their story be impartially estimated ten years after their body has mouldered 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 offence, 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 labours to talk of being put on his trial; but no man ever seriously wished for this ordeal who knew what a trial was.