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 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.
135 Stephen, op. cit. iii. 91 sq.
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 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 Ossetes140 and Swanetians141 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 Pénal146 is almost the only one that punishes an attempt 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
137 Kohler, in Zeitschr. f. vergl. Rechtswiss. xv. 353.
138 Merker, quoted by Kohler, ibid. xv. 63.
139 Kohler, ibid. xiv. 418.
140 Kovalewsky, Coutume contemporaine, p. 296 sq.
141 Dareste, Nouvelles études d’histoire du droit, p. 237.
142 Kovalewsky, op. cit. pp. 291, 299.
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.
144 Seeger, Versuch der Verbrechen in der Wissenschaft des Mittelalters, p. 8.
145 Zachariä, op. cit. i. 169; ii. 141. von Feuerbach-Mittermaier, Lehrbuch des Peinlichen Rechts, p. 74.
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.”
147 Chauveau and Hélie, Théorie du Code Pénal, i. 347 sq.
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