An Essay on Crimes and Punishments/Chapter XXXVII
CHAPTER XXXVII.
Of Attempts, Accomplices, and Pardon.
THE laws do not punish the intention; nevertheless, an attempt, which manifests the intention of committing a crime, deserves a punishment, though less, perhaps, than if the crime were actually perpetrated. The importance of preventing even attempts to commit a crime sufficiently authorises a punishment; but as there may be an interval of time between the attempt and the execution, it is proper to reserve the greater punishment for the actual commission, that even after the attempt there may be a motive for desisting.
In like manner, with regard to the accomplices, they ought not to suffer so severe a punishment as the immediate perpetrator of the crime. But this for a different reason. When a number of men unite, and run a common risk, the greater the danger, the more they endeavour to distribute it equally. Now, if the principals be punished more severely than the accessaries, it will prevent the danger from being equally divided, and will increase the difficulty of finding a person to execute the crime, as his danger is greater by the difference of the punishment. There can be but one exception to this rule; and that is, when the principal receives a reward from the accomplices. In that case, as the difference of the danger is compensated, the punishment should be equal. These reflections may appear too refined to those who do not consider, that it is of great importance, that the laws should leave the associates as few means as possible of agreeing among themselves.
In some tribunals a pardon is offered to an accomplice in a great crime, if he discover his associates. This expedient has its advantages and disadvantages. The disadvantages are, that the law authorises treachery, which is detested even by the villains themselves; and introduces crimes of cowardice, which are much more pernicious to a nation than crimes of courage. Courage is not common, and only wants a benevolent power to direct it to the public good. Cowardice, on the contrary, is a frequent, self-interested, and contagious evil, which can never be improved into a virtue. Besides, the tribunal, which has recourse to this method, betrays its fallibility, and the laws their weakness, by imploring the assistance of those by whom they are violated.
The advantages are, that it prevents great crimes, the effects of which being public, and the perpetrators concealed, terrify the people. It also contributes to prove, that he who violates the laws, which are public conventions, will also violate private compacts. It appears to me, that a general law, promising a reward to every accomplice who discovers his associates, would be better than a special declaration in every particular case; because it would prevent the union of those villains, as it would inspire a mutual distrust, and each would be afraid of exposing himself alone to danger. The accomplice, however, should be pardoned, on condition of transportation. . . . But it is in vain, that I torment myself with endeavouring to extinguish the remorse I feel in attempting to induce the sacred laws, the monument of publick confidence, the foundation of human morality, to authorise dissimulation and perfidy. But what an example does it offer to a nation, to see the interpreters of the laws break their promise of pardon, and on the strength of learned subtleties, and to the scandal of public faith, drag him to punishment who hath accepted of their invitation! Such examples are not uncommon, and this is the reason, that political society is regarded as a complex machine, the springs of which are moved at pleasure by the most dexterous or most powerful.