average man moral emotions are hardly ever called into existence by calm and penetrating reflection. There are certain phenomena which for some reason or other are apt to arouse in him such emotions, but he does not seek for them. They must force themselves upon his mind, and the more vigorously they do so, the stronger are the emotions they excite. Nothing makes a greater impression on him than facts which are perceptible by the senses. He will admit that an intention, or even a mere wish, to do something wrong is wrong by itself, but an outward event is generally needed for shaking him up. This, I think, is the original reason why persons have not been punished for intentions unaccompanied by external deeds. No doubt, the principle that “the thought of man shall not be tried,” is strongly supported by the fact that, as a mediæval writer puts it, “the devil himself knoweth not the thought of man.”170 But considering how ready people have been to presume guilt in cases of unintentional injuries, it seems very incredible that they originally refrained from punishing bare intentions merely on account of insufficient evidence. Indeed, as an exception to the rule, in a few cases when the crime designed is regarded with extreme horror, the very intention may give such a shock to public imagination as to call for punishment.
170 Quoted by Pollock and Maitland, op. cit. ii. 474.
According to Chinese law, “any person convicted of a design to kill his or her father or mother, grandfather or grandmother, whether by the father’s or mother’s side; and any woman convicted of a design to kill her husband, husband’s father or mother, grandfather or grandmother, shall, whether a blow is, or is not struck in consequence, suffer death by being beheaded.”171 This exceptional law obviously owes its origin to the extreme reverence in which parents and ancestors are held by the Chinese, and to the wife’s subjection to her husband. In mediæval laws referring to heresy we have another instance of punishment being inflicted for a mere state of mind without any corresponding act. According to Julius Clarus, this exception to the rule is due to the fact that the crime of heresy itself consists in “sola mentis cogitatione.”172 But the real reason why the law in this case troubled itself about men’s thoughts, and even allowed them to be put on their trial for their tacit opinions on bare suspicion, is the detestation in which heresy was held and the extreme attention it attracted. By all this, of course, I do not mean to deny that a judicious and enlightened legislator may find other grounds for taking no notice of mere intentions than their inability to arouse public indignation. I only speak of matters of fact.
171 Ta Tsing Leu Lee, sec. cclxxxiv. p. 305.
172 Julius Clarus, Practica Criminalis, qu. 91 (Opera omnia, ii. 625).
Again, as regards acts of preparation and many cases of unsuccessful attempts, it may be said that the agent perhaps would have altered his mind before he came to the point, or that the failure of his attempt was possibly due to a change of intention in the last moment.173 But there are innumerable cases in which the attempt, with no less certainty than the accomplished crime, displays a criminal intention which is final. And it is particularly instructive to note that, among the very peoples who treat unintentional injuries with the greatest severity, unsuccessful attempts are treated with the greatest leniency. This is well illustrated by a comparison between Teutonic and Roman law; in either case the former chiefly looks at the event, the latter chiefly at the intention of the agent. If there is no punishment for a bare attempt to commit a crime, that is because such an attempt makes no impression on the public. If an attempt is punished more heavily according as it is more advanced, that is because it calls forth greater indignation in proportion as it comes near to the crime intended. And if even the conatus proximus is punished with less severity than the accomplished crime, that is because the indignation it evokes is less. This explanation is corroborated by concessions made by theorisers who have in vain endeavoured to find more rational grounds for existing laws on attempt. They have ultimately found it necessary to resort to phrases such as “the natural sense of justice,” or to appeal to the feelings of the multitude.174 M. Rossi observes, “Nous pensons que le sens commun et la conscience publique ont constamment tenu le même langage. ‘Le délit n’a pas été consommé, donc la punition doit être moindre.’ Cette idée de proportion matérielle, ce sentiment de justice, grossière j’en conviens, est naturel à l’homme.”175 This is the view taken by the unreflecting moral consciousness. To him whose feelings are tempered by thought, “a man,” as Seneca says, “is no less a brigand, because his sword becomes entangled in his victim’s clothes, and misses its mark.”176
173 As a rule, the man who voluntarily desists from the attempt to commit a crime would not be punished at all (see Seeger, Versuch nach römischem Recht, p. 50; Charles V.’s Peinliche Gerichts Ordnung, art. 178; the French Code Pénal, art. 2; the Italian Codice Penale, art. 61; Finger, Compendium des österreichischen Rechtes—Strafrecht, i. 181; and, for various German laws, Zachariä, op. cit. ii. 311 sq., and Cohn, op. cit. i. 12 sq.), or he would be punished more leniently than if there had been no such desistance (Zachariä, ii. 239, sqq. Cohn, i. 12 sq.). On this subject see also Herzog, Rücktritt vom Versuch und Thätige Reue, passim.
174 Lelièvre, De conatu delinquendi, p. 361 (quoted by Zachariä, op. cit. ii. 66, n. 2): “Ceterum libenter fateor, me potius sentire aliquam necessitatem paululum levius in perfectum crimen ac in maleficium consummatum animadvertendi, quam reddere posse claram necessitates rationem.” Abegg, Die verschiedenen Strafrechtstheorieen, p. 65: “Für uns folgt aber jene nothwendige Beobachtung der concreten Unterschiede, in dem Gebiete der Erscheinung, nach der aus dem Gerechtigkeitsprincipe abgeleiteten Regel, dass Jeder für seine That, und was er verdient habe, leiden solle.” Zachariä, op. cit. ii. 51:—“So macht sich in dem natürlichen Gerechtigkeits-Gefühl des Einzelnen und des ganzen Volkes auch von selbst die Unterscheidung zwischen der Strafe des vollendeten und der des blos versuchten Verbrechens geltend. … Es kann freilich seyn, dass der grösste Theil der Menschen für ein solches natürliches Gefühl keine Gründe anzugeben vermag; allein das Strafrecht, welches ja gerade auf die grosse Menge zu wirken hat, kann dessenungeachtet solche unwillkürlich im Volke sich geltend machende Ansichten nicht unberücksichtigt lassen.” Cf. also Finger, op. cit. i. 177.
175 Rossi, Traité de droit pénal, ii, 318.
176 Seneca, Ad Serenum, 7.
In the same way as moral indignation, is moral approval influenced by external events. Though we would not praise a person for some deed of his which we clearly recognise to reflect no merit on his will, the benefits which result from a good act easily induce us to exaggerate the goodness of the agent. On the other hand, it is success alone that confers upon a man the full reward which he deserves; good intentions without corresponding deeds meet with little applause even when the failure is due to mere misfortune. “In our real feeling or sentiment,” Hume observes, “we cannot help paying a greater regard to one whose station, joined to virtue, renders him really useful to society, than to one who exerts the social virtues only in good intentions and benevolent affections.”
It is thus only from want of due