I must first set aside one ambiguity which perplexes this argument. When we speak of a temptation as varying, we may mean one of two very different things. To say that I am more "tempted" than you to commit a given crime, may mean that the gain expected by me is itself greater; or, it may mean that I am more predisposed to the crime. I may be more tempted, let us say, to poison my uncle than you are to poison yours. That may mean that my uncle is a rich old sinner and I am his heir, whereas your uncle is a poor saint and you will get nothing by his death. Or it may mean that I am more tempted because, our uncles being alike, I am spiteful, and you affectionate, by nature. In the first case, to say that I am under the stronger temptation would, perhaps, tend to alleviate the gravity of my crime; in the second, it would simply be another way of saying that I was the greater brute. In both cases, of course, it is true that the greater temptation would require the greater counterpoise. In one case, this only means that the worse the man, the stronger the restraints which he requires; and, if you could make different laws for bad men and good, it would follow that the bad would require the heaviest penalties. But this does not conflict with the moral view. It is no excuse for a murderer to say, "I am so bloodthirsty that I really could not help murdering". No contradiction to morality arises from punishing his crime more severely. In the other case alone,--the case in which we made distinctions founded upon the difference of surrounding circumstances,--it is true that we should, from the point of view of simple deterrence, require heavier penalties where the temptations were greater, and, therefore, the intrinsic malevolence proved to exist less.
For most purposes, this argument seems to have very little practical application. The law is made for people in general; we cannot have one law for bad men and another for good; partly because good and bad people do not carry about tangible marks of their quality written upon their faces. No doubt, indeed, the atrocity of a crime is recognised, if not by the general law, by the nature of the sentence. An assault may show unnatural ferocity or merely a rather excessive warmth of temper; and, though the offence may be forbidden under the same clause of the criminal law, the judge may be empowered to give sentences of varying severity, varying more or less according to the moral depravity implied. So far, the worst offences (in a moral sense) get the heaviest punishment; and the deterring influence is rightly exerted by proportioning the penalty to the temptation, that is, to the predisposition to crime. The other case, again, requires some qualification. It is not true, as an absolute proposition, that the criminality is always, or generally, diminished, in proportion to the greatness of the temptation; for we must remember that both the temptation and the crime will generally be greater in proportion to the amount of mischief inflicted. It is more tempting, no doubt, to appropriate a thousand pounds than a shilling; but we cannot infer that the man who takes the larger sum is, therefore, less wicked; that he has a conscience which would have kept him honest under the smaller temptation, and has only yielded to the greater. Compare, for example, the case of the petty pilferer who appropriates my watch, with the case of the man of business who appropriates securities worth many thousand pounds and ruins widows and orphans by the dozen. We should all agree, I imagine, that the perpetrator of the more gigantic fraud would require the stronger deterring motive to be kept straight. He is playing for heavy stakes, and we cannot hold out too strong a threat of infamy and suffering, if our aim is simply to prevent the crime. But neither, if we consider him from the purely moral point of view, would it be fair to argue that he was a better man than the pickpocket, because the plunder which tempted him was greater. The opposite, I fancy, would be true. He shows a callousness to human suffering, and an amount of deliberate hypocrisy and treachery which proves him to be not only the more dangerous, but the more thoroughly corrupt of the two. The two ends of providing a sufficient counterpoise and of punishing the worst men most severely, would, therefore, coincide in this case also; and the argument that the greater temptation implies less wickedness is plainly inapplicable.