The question " by whom are the criminals to be trans ported," is also answered ; and the deduction grounded upon ta petitio principii,t proves to be without weight. Lastly, the plan of " the states carrying away their own convicts, instead of involving too many objections to per mit its investigation," is shown to be simple in the ex treme, and admitting of no difficulty.
But it is said, that" the Constitution knows of no such po licy as the appropriation of money by Congress to purchase a territory, that is not to be governed by that constitution, that is not to be a part of the American confederacy." If the island in question should be ceded to the United States by the Portuguese government, to which, by right of discovery, it btlongs ; I presume the objection on the ground of the purchase will he given up ; and it would be well for our government to ask for the cession of it, in order to put the question of the right of occupancy at rest. That no diffi culty will be made by Portugal on the occasion, is presum able from the fact of the total neglect with which that power has treated the island ever since the discovery of it by her ships ; and by the indifference she exhibited when it was taken possession of, in 1310, by the late Captain Lambert ; by the British troops, for a few months, during the years 1817 and 1818, as already stated ; and by the few renega does who are known to be settled there at present. Thus, instead of there being " only two methods" whereby we can acquire a foreign settlement, we find there is a third ; and that if the mode of purchase be " out of the question," that of accepting it, or the whole group, as a gift from the only rightful owners, is within it.
Another objection urged by the committee, is, the want of constitutional right to transport criminals. If this should have any weight, it may be overcome by offering pardon to the convict, on condition that he will remove himself to such place, out of the bounds of the United States, as shall be pointed out to him, and not to return ; the pardon to take effect when such removal shall have been effected. Provision may also be made by law, in the event of his not agreeing to this proposal, for perpetual imprisonment in a solitary cell.
It is asserted also, that if the states are to carry away their own convicts, " they would avoid indicting, arraig ning, and convicting felons, from the apprehension of heavy pecuniary burdens." This assertion is hazarded upon the supposition that transportation would be more expensive than the present system ; but before taking the fact for granted, it ought to have been established. Enough has been said to induce a belief that the contrary is the fact ; —why, then, 'should the states decline arraigning con victs, when for probably a less sum, certainly not a great er, they may send them away, and rest satisfied of their never again being troubled with them ? But, finally, we are told that " the United States can never resort to the transportation of criminals, to any dis tant spot, beyond the jurisdiction of municipal authorities, while the present form of government remains, and the people cherish their existing moral and civil institutions."
Such a position, although delivered in a tone so authori tative, will not, on that account, influence those who are to decide upon the measure in question. It is a bold position, that will require much discussion and proof, before it can be received, without hesitation, as an axiom in American penal jurisprudence. At present let the onus /irobandi remain with those who have brought it forward. The American legislators, after reading the proposed plan, will be able to give a just decision, as to its conformity or op position to " our moral or civil institutions." Let it be shown, what connexion exists between the " cherishing those institutions," and keeping at home a host of reprobates, at a great expense, who will occasion ally be let loose by pardons, or expiration of sentences, to renew their depredations upon society, before the position be admitted as an argument against transportation. I deny the justness of its foundation, and, until the required proof be adduced, I shall adopt the sentiments of the respectable counsellor in the New-York legislature, and with him, " as sert the right of society to protect itself by any such means as may be most efficient, and deny that criminals, who make war upon mankind, have in this respect any rights, which are not subordinate to the higher rights of the injur ed community ;"$ criminals, who, by the enormity of their crimes, have utterly disgraced themselves, mortified and distressed those to whom they are related, and have ren dered themselves unworthy of living in a society, by the irreparable injury they have inflicted upon some of its mem bers. Nor do I see any prohibition in the constitution to the removal of another class of men, who have become public pests, and have shown themselves incorrigible and oast reformation by solitary confinement ; determined to go on vexing mankind with their depredations, or until, by their crimes, accident, or the course or nature, they are dragged down to destruction, and sent to appear before the awful tribunal, to " give an account of the deeds done in the body." No other certain resource is left to us to check the increase of crimes, and the useless expenditure of the public money on criminals.