Book 7, Chapter 07 : Of Evidence
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Book 7, Chapter 07
Difficulties to which this subject is liable - exemplified in the distinctions between overt actions and intentions - Reasons against this distinction. - Principle in which it is founded.
Having sought to ascertain the decision in which questions of offense against the general safety ought to terminate, it only remains under this head of inquiry 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 offenses.
The difficulties to which the subject of evidence is liable have been stated in the earlier divisions of this work.1 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 offense?'
The arguments in favor 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 misdemeanors, 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 offense.' 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. It is necessary I should be acquainted with the context, and the occasion that produced them. Their construction will depend upon the quantity of momentary heat or rooted malice with which they were delivered; and words which appear at first sight of tremendous import will sometimes be found, upon accurate investigation, to have had a meaning purely ironical in the mind of the speaker. These considerations, together with the odious nature of punishment in general, and the extreme mischief that may attend our restraining the faculty of speech, in addition to the restraint we conceive ourselves obliged to put on men's actions, will probably be found to afford a sufficient reason why words ought seldom or never to be made a topic of political animadversion.
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