Secondly, it is absolutely necessary, upon the principles here explained, that these colonists, after having been sufficiently provided in the outset, should be left to themselves. We do worse than nothing if we pursue them into their obscure retreat with the inauspicious influence of our European institutions. Why trouble ourselves with sending magistrates and officers to govern and direct them? Do we suppose that, if left to themselves, they would universally destroy each other? On the contrary, new situations make new minds. The worst criminals, when turned adrift in a body, and reduced to feel the churlish fang of necessity, conduct themselves upon reasonable principles, and have been found to proceed with a sagacity and public spirit that might put the proudest monarchy to the blush.
Meanwhile let us not forget the inherent vices of punishment, which present themselves from whatever point the subject is viewed. Colonization may be thought the most eligible of those expedients which have been stated, but it is attended with considerable difficulties. The community judges of a certain individual that his residence cannot be tolerated among them consistently with the general safety. In denying him his choice among other communities do they not exceed their commission? What treatment shall be awarded him if he return from the banishment to which he was sentenced?
-- These difficulties (and many others might be subjoined to these) are calculated to bring back the mind to the absolute injustice of punishment, and to render us inexpressibly anxious for the period at which it shall be abolished.
To conclude. The observations of this chapter are relative to a theory which affirmed that it might be the duty of individuals, but never of communities, to exert a certain species of political coercion; and which founded this duty upon a consideration of the benefits of public security. Under these circumstances then, every individual is bound to judge for himself, and to yield his countenance to no other coercion than that which is indispensably necessary. He will, no doubt, endeavour to meliorate those institutions, with which he cannot prevail upon his countrymen to part. He will decline all concern in the execution of such, as abuse the plea of public security to atrocious purposes. Laws may easily be found in almost every code which, on account of the iniquity of their provisions, are suffered to fall into disuse by general consent. Every lover of justice will, in this way, contribute to the repeal of laws that wantonly usurp upon the independence of mankind, whether by the multiplicity of their restrictions, or the severity of their sanctions.
Having sought to ascertain the decision in which questions of offence against the general safety ought to terminate, it only remains under this head of enquiry to consider the principles according to which the trial should be conducted. These principles may for the most part be referred to two points, the evidence that is to be required, and the method to be pursued by us in classing offences.
The difficulties to which the subject of evidence is liable have been stated in the earlier divisions of this work. It may be worth while, in this place, to recollect the difficulties which attend upon one particular class of evidence, it being scarcely possible that the imagination of every reader should not suffice him to apply this text, and to perceive how easily the same kind of enumeration might be extended to any other class.
It has been asked, 'Why intentions are not subjected to the animadversion of criminal justice, in the same manner as direct acts of offence?'
The arguments in favour of their being thus subjected are obvious. 'The proper object of political superintendence is not the past, but the future.
Society cannot justly employ punishment against any individual, however atrocious may have been his misdemeanours, from any other than a prospective consideration, that is, a consideration of the danger with which his habits may be pregnant to the general safety. Past conduct cannot properly fall under the animadversion of government, except so far as it is an indication of the future. But past conduct appears, at first sight, to afford a slighter presumption as to what the delinquent will do hereafter than declared intention.
The man who professes his determination to commit murder seems to be scarcely a less dangerous member of society than he who, having already committed murder, has no apparent intention to repeat his offence.' Yet all governments have agreed either to pass over the menace in silence, or to subject the offender to a much less degree of punishment than they employ against him by whom the crime has been perpetrated. It may be right perhaps to yield them some attention when they thus agree in forbearance, though little is probably due to their agreement in inhumanity.
This distinction, so far as it is founded in reason, has relation principally to the uncertainty of evidence. Before the intention of any man can be ascertained, in a court of justice, from the consideration of the words he has employed, a variety of circumstances must be taken into the account.
The witness heard the words which were employed : does he repeat them accurately, or has not his want of memory caused him to substitute, in the room of some of them, words of his own? Before it is possible to decide, upon the confident expectation I may entertain, that these words will be followed with correspondent actions, it is necessary I should know the exact tone with which they were delivered, and gesture with which they were accompanied.