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 punish ment. 1 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." 1 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. 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. 2 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 1 Ta Tsing Leu Lee, sec. cclxxxiv. p. 305. 2 Julius Clarus, Practica Criminalis, qu. 91 (Opera omnia, ii. 625). . 1 to a change of intention in the last moment.1 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.2 1 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, Zacharia, 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 (Zacharia, ii. 239 sqq. Cohn, i. 12 sq.). On this subject see also Herzog, Rücktritt vom Versuch und Thätige Reue, passim. 2 Lelièvre, De conatu delinquendi, p. 361 (quoted by Zacharia, op. cit. ii. 66, n. 2): "Ceterum libenter fateor, me potius sentire aliquam necessitatem paululum levius in perfectum crimen con ac in maleficium consummatum ani- 66 freilich seyn, dass der grösste Theil der Menschen für ein solches natürliches Gefühl keine Gründe anzugeben vermag; allein das Strafrecht, 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." 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." 2 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 reflection that moral judgments are influenced by outward deeds. Owing to its very nature, the moral consciousness, when sufficiently influenced by thought, regards the will as the only proper object of moral disapproval or moral praise. That moral qualities are internal, is not an invention of any particular moralist or any particular religion; it has been recognised by thoughtful men in many different countries and different 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. 1 Rossi, Traité de droit pénal, ii. 318. 2 Seneca, Ad Serenum, 7. ages. "He that is pure in heart is the truest priest," said Buddha.1 In the Taouist work, Kan ying peen,' it is written :-"If you form in your heart a good intention, although you may not have done any good, the good spirits follow you. If you form in your heart a bad intention, although you may not have done any harm, the evil spirits follow you."2 According to the Thâi-Shang, mere wishes are sufficient to constitute badness. One of the Pahlavi texts puts the following words into the mouth of the Spirit of Wisdom :-" To be grateful in the world, and to wish happiness for every one; this is greater and better than every good work." God, says the Koran, "will not catch you up for a casual word in your oaths, but He will catch you up for what your hearts have earned.' 195 According to the Rabbis, the thought of sin is worse than sin, and an unchaste thought is a "wicked thing." It was an ancient Mexican maxim that "he who looks too curiously on a woman commits adultery with his eyes "— a striking parallel to the passage in St. Matthew v. 28. "Voluntas remuneratur, non opus," says the Canonist. "Licet gladio non occidat, voluntate tamen interficit." "Non ideo minus delinquit, cui sola deest facultas." s "7 1 Hopkins, Religions of India, p. 319. 2 Douglas, Confucianism and Taouismi, p. 270. 3 Thai-Shang, 4. 4 Dîna-i-Maînôgi Khirad, lxiii. 3 sqq. Cf. ibid. i. 10, where it is said that the good work which a man does unwittingly is little of a good work, though the sin which a man commits unwittingly amounts to a sin in its origin. 5 Koran, ii. 225. Cf. Ameer Ali, Ethics of Islam, p. 26. 6 Schechter, in Montefiore, op. cit. p. 558. Cf. Deutsch, Literary Remains, p. 52. Sahagun, Historia general de las cosas de Nueva España, vi. 22, vol. ii. 147 : "Dice el refran que el que curiosamente mira á la muger adultéra con la vista." 8 Gratian, Decretum, ii. 33. 3. 25, 30, 29. CHAPTER X AGENTS UNDER INTELLECTUAL DISABILITY We hold an agent responsible not only for his intention, but for any known concomitant of his act, as also for any such unknown concomitant of it as we attribute to want of due attention. But for anything which he could not be aware of he is not responsible. Hence certain classes of agents—animals, children, idiots, madmen—are totally or partially exempted from moral blame and legal punishment. Though animals are undoubtedly capable of acting, do not regard them as proper objects of moral indignation. The reason for this is not merely the very limited scope of their volitions and their inability to foresee consequences of their acts, since these considerations could only restrict their responsibility within correspondingly narrow limits. Their total irresponsibility rests on the presumption that they are incapable of recognising any act of theirs as right or wrong. If the concomitant of an act is imputable to the agent only in so far as he could know it, it is obvious that no act is wrong which the agent could not know to be wrong. It is a familiar fact that, by discipline, we may teach domesticated animals to live up to a certain standard of behaviour, but this by no means implies that we awake in them moral feelings. When some writers credit dogs and apes with a conscience, we must remember that an 1 Romanes, Mental Evolution in der Thiere, p. 67. Brehm, From Animals, p. 352. Perty, Seelenleben North Pole to Equator, p. 298. |