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intend to show, that in human laws law to prevent crime and to protect sopunishment is not inflicted on account ciety ; and they have excluded the of the intrinsic demerit of crime.” principle of retributive justice from
Dr. Lewis is so perfectly clear, in their views of human government. his own mind, that government should The principle for which Dr. Lewis punish crime as crime, that he feels au- contends, he certainly did not derive thorized to sit in judgment on the mo- from a study of the common law; for tives of those by whom this doctrine to the common law such a principle is is opposed. “ The apparent remote- utterly unknown. And in defending ness of the corner from which the at the law, as it now stands, against the tack is made," says he, “cannot dis- attacks of its adversaries, Dr. Lewis guise the motive, or conceal that viru- and Dr. Cheever have done anything Jence, so much beyond what would but wisely, in pouring contempt upon seem to be called forth by an ordinary one of its most universally and most question of political philosophy. They dearly recognised principles. We have sagacity to perceive, that if it can would submit to their consideration a be made out that there is nothing single passage from Blackstone, which strictly penal or retributive, notbing very clearly expresses the doctrine of capital in human law,-neither is there the common law on this subject, as in the Divine"-p. 15. This is only well as the sentiment of its greatest one passage out of many to the same and most enlightened expounders. purpose, which are to be found in the • As to the end, or final cause of huwork under consideration. Indeed, if man punishment,” says Blackstone, all the appeals to the odium theologicum “this is not by way of atonement or which Dr. Lewis has thrown into his expiation for crime committed ; for that Essay were expunged, it would be ama- must be left to the just determination zingly reduced in bulk. If his argu- of the Supreme Being: but as a prements were as strong as many of his caution against future offences of the passionate appeals of this kind, they same kind." would indeed be formidable.
We shall now proceed to examine Before we proceed to examine his ar- the reasoning of our authors. In order guments we would remind Dr. Lewis to show that human punishment is reof a few things which, in the heat and tributive, or is inflicted on the criminal violence of his rhetoric, seem to have on account of the intrinsic demerit of escaped his memory. It is a plain mat- crime, great stress is laid on the etyter of fact, then, that many of the most imology of the term punishment. Thus, enlightened advocates of capital pun- says Dr. Lewis, “we frankly admit ishment, have entirely discarded from that we attach more value to this unitheir views of human government the versal etymological argument, even idea of retributive justice. They have when its proof is found in some barbarepudiated this notion, not because they rous Chippewayan dialect, than to all entertained the design to exclude the the definitions of a Grotius or a Pufsame principle from the divine govern- fendorf. Pain, (poena, nový, Fovos,) sufment, but just because they believed fering for crime as crime, is the radical that retributive justice belongs to God idea.”—p. 12. This is the “ inherent alone. If Dr. Lewis had borne this in and inseparable idea belonging to the mind, it might, perhaps, have modera- terms, punishment, penal, penalty, or to ted his judgments of men and motives, their counterparts in every human and given a milder tone to his invec- speech.”-Ibid. " When these ideas, tives. If so, it would have spoiled (the ideas of 'sjn and suffering, crime much of his fine rhetoric, it is true; and pain') “are sundered, we may, if we but we doubt whether it would have choose, call it compact, political experendered his essay any the less worthy diency, or political economy; but the of a doctor of laws. Nearly all the terms government, law, penalty, are grea: jurists, (we do not remember a no longer applicable. Those who still
single exception) from Sir Matthew retain the words in such connections do • Hale down to Sir Samuel Romily, have most grossly abuse language,--an of
taken a different view of this subject fence so frequent in the present day, from Dr. Lewis. They have held it to and so mischievous in its tendencies, be the great aim and object of penal that it would almost seem to deserve a
place in the list of statutable misde “ Tooke. It is merely the past particimeanors."
ple lag, of the Gothic and Anglo-Saxon We believe that Dr. Lewis is a pro- verb legan ponere; and it means somefessor of languages in the University of thing or anything laid down as a rule of
conduct. New-York; and therefore it
Thus, when a man demands his may
be presumed, that he has had something he shall have. A right conduct is that
right, he only asks that which it is ordered to do with the study of language ; and which is ordered. A right line is that if so, how he could have laid so much which is ordered or directed; not a random stress upon the etymology of a word, extension, but the shortest between two as throwing light on a philosophical points. A right and just action is such a question, it is not easy for us to con one as is ordered and commanded. The ceive. How he could have given the right-hand is that which custom, and most superficial attention to the laws of those who have bronght us up, have
ordered or directed us to use in preference, language, and yet speak of any idea as
when one hand only is employed, and the being inseparably attached to a word, is left-hand is that which is lieved or left. entirely beyond our comprehension. “ Burdett. Surely the word right is We had supposed that it was known to sometimes used in some other sense
And everytody, that the connection between see, in this newspaper before us, M. Porwords and ideas is not only convention- talis, contending for the concordat, says :al, but that nothing is more common
• The multitude are much more impressed than for words to acquire entirely new
with what they are commanded to obey, meanings ; and, in many cases, to drop ihan with what is proved to them to be and lose their primary signification al- right and just.' This will be complete together. The question is not about and commanded.
nonsense, if right and just mean ordered the strict literal meaning of the term “ Tooke. I will not undertake to make punishment, as it stands in relation to
sense of the argument of M. Portalis. moral evil; but it refers to the idea The whole of his speech is a piece of which should be attached to it, when wretched mummery of pope and popery. applied to human laws. And the at Writers on such subjects are not very anxtempt of the Essay to settle the mean ous about the meaning of their words. ing of a word, as it is used at the
Ambiguity and equivocation are their sent day in reference to a particular strongholds. Explanation would undo subject, or as it stands in a particular “ Burdett. Well, but Mr. Locke uses connection, by an appeal to its etymo- the word in a manner hardly to be reconlogy, and thereby to illustrate a grave ciled with your account of it. He says :question in philosophy, is a kind of pe- "God has a right to do it, we are his crea. dantry which we had hoped was obso- tures.' lete among philosophers. Is modern “ Tooke. It appears to me highly im. science to be dug up out of the roots of proper to say, that God has a right, as it is Greek, or Latin, or Hebrew words ? also to say that God is just. For nothing Or is the meaning of a word, through cerning God. The expressions are inap
is ordered, directed, or commanded conall the changes of its form and of cen- plicable to the Deity: though they are turies, immutable ?
common, and those who use them have The mode of reasoning adopted by the best intentions. They are applicable Professor Lewis, if pursued to its le- only to men, to whom alone language begitimate results, would quite demolish longs, and of whose sensations only words all his lofty sentiments about “the ab are the representations; to men, who are solute.” It is well-known, that Mr. by nature the subjects of orders and comTooke defined the nature of law and mands, and whose merit is obedience.
“ Burdett. just, by a reference to the etymology of ordered and commanded, is right and just?
Everything, then, that is the words. His reasoning is so edify " Tooke. Surely; for that is only afing and so conclusive, that we shall firming, that what is ordered and com: present our readers with a specimen of manded, is—ordered and commanded." it, from his Diversions of Purley ; which, as the learned reader well It is thus that Mr. Locke, by wieldknows, is in the form of a dialogue be- ing the favorite weapon of Prof. Lewis; tween the author and Sir Francis Bur- by appealing to the etymology of words, dett.
and holding the ideas thus denied to be
inseparable from the words themselves, * Burdett. What, then, is law ? demolishes the essential difference be
tween right and wrong.
If such rea
er; nor would he invoke the power of soning is to be tolerated, Dr. Lewis the law to enlighten them on the submust give up all his high-sounding ject of etymology. It is not from maphrases about the absolute," as unin- lice that he seems willing to brandish telligible jargon. He must consent to such weapons ; be simply knows not suffer the fate of M. Portalis and Mr. what he does. We dare say, that he Locke. He must believe that the words is a little angry with a certain class of right and just have no meaning when his opponents at times, and that, while applied to God.
the fit is on him, he would have no great This is not all. Mr. Locke informs objection to seeing them suffer a slight us, that "like other words, true is also twinge of pain, or pana, just sufficient a past participle of the Saxon verb treo- to shake their obstinacy or to arouse wan, confidere, to think, to believe firm- their stupidity, in order that they might ly, to be thoroughly persuaded of, to be enlightened by his " universal trow. True, as we now write it, or etymological argument.” He would trew, as it was formerly written, means not wish to punish, we are sure he simply and merely that which is trowed, would not wish to punish very severely, and instead of its being a rare commodi- those who agree with him on the great ty upon earth, except only in words, subject of capital punishment, because there is nothing but truth in the world.” they cannot exactly assent to all his It was in this learned manner that Mr. "grounds and reasons" in favor of it. Tooke demonstrated that whatever one But, after all, what does this term troweth is true, and exploded the notion pana really signify? Does it signify of immutable truth as transcendental " suffering for crime as crime?" If nonsense. If Prof. Lewis has a mind such be its meaning, and Prof. Lewis to be consistent, we would commend to has discovered it, we must confess that his imitation the example of his illus- he has dug deeper into this root, and trious predecessor.
extracted more light from it, than we Again. As the term spirit, as well have been able to do. It may signify as all other words relating to the mind pain and suífering, and, if you please, and its operations, were in the first in- *suffering for criine;" but how it can stance employed to denote material ob- convey to any mind the positive and jects and phenomena ; so their etymolo- distinct intelligence, that he who bears gy has been used in order to show, that the thing signified, really suffers for there is no such thing in all the Uni- crime?-crime, is more than we, with verse as mind or spirit, any contra-dis- our best optics, are able to perceive. tinguished from matter. If a refusal Indeed, for our part, we regard this as to follow such a guide, such a principle a mere arbitrary assumption of the of interpretation, were indeed made a learned Professor, on which he hastens statutable misdemeanor," we should not to erect an equally arbitrary inference hesitate for a moment in our choice: we of law. But we may easily waive all would prefer all the pains and penalties this, inasmuch as no respect is due to the statute could inflict, rather than such etymological arguments, when adopt such a course of philosophizing. applied to philosophy. For all philosoWe had infinitely rather suffer, for hold- phies founded on etymology, or dug up ing the doctrine of the great lights of out of the roots of words, rather than jurisprudence, in spite of etymology, derived from the light of things, we than to be crowned with honor and have long entertained no other opinion glory for subscribing to the philosophy than that Mr. Hazlitt has expressed of Horne Tooke.
for the unutterably wretched philosoBut, in all seriousness, we do not phy of Horne Tooke : + I would class really suppose, we have not the least the merits of Mr. Tooke's work,” says idea, that Dr. Lewis is instigated by he, “under three heads : the etymolomalice when he talks about “statutable gical, the grammatical and the philosomisdemeanory :" we take this to be a phical. The etymological part is exmere rhetorical flourish. We are sure cellent, the grammatical part indifferhe would not hang, or in the least de- ent, and the philosophical part to the last gree injure such men as Blackstone and degree despicable ; i. is down-right unPaley, even if he had them in his powo qualified, unredeemed nonsense."
Dr. Cheever, no less than his learn- rately urged by hunger, saves both himed co-adjutor, lays great stress upon self and family from starvation, by the the primary meaning of the words jus- theft of a loaf of bread? If so, then tice, deseri, and punishment. The according to the principle of vur authors, words desert, justice, punishment," "it cannot but be useful” to punish says he, “ convey ideas over and above him, and the strong arm of the law the idea of utility. We do not punish should be invoked, not only to punish because it is useful, but because it is him as he deserves, but to compel him deserved and just ; and being deserved to give of his substance to the poor. and just, (we italicize his words,) it Precious philosophy this, for the agracannot but be useful."--p. 193. Now, rians of the day; who, no doubt, will we are perfectly free to admit, that roll it as a sweet morsel under their there is such a thing as ill-desert; tongues. Will our authors reply, as we that there is an intrinsic hideousness conceive all sensible men should reply, and deformity in all criine, and that the that although there are many things criminal really deserves punishment. which deserve to be punished, yet such We do most heartily subscribe to all is the necessary imperfection of human' that our authors have said, with respect law, that it is not proper for human to the existence of conscience, and the government to take cognizance of them, iminutable distinction between right but to leave them to the all-perfect and wrong: we all feel that moral evil ruler of the world?. If they should in every
form and shape deserves to be make this reply, (which all great jurists, punished. We utterly loathe and re- both of the civil and of common law, have pudiate the shallow philosophy of a made in such cases,) we have nothing
Hobbes and a Bentham, by which manis more to say, except that they have | stripped of his high moral powers, and most sadly shrunk from all their lofty
made like unto “ four footed beasts and declamations about the morally right, creeping things." But what does all and the absolute; and, after all, settle this signify? Does it follow, that be- down, in matters of human government, cause crime, that because all sin de- upon the low and vulgar ground of ex-' serves to be punished as crime and as pediency. sin, that it is therefore the prerogative Let any man study the great jurists of man to punish them as such ? To of France, or of England, or of Amethe eye that has even looked into the rica, and he cannot fail to discover that spirit of human law, it is not possible many things are right in themselves, to present a more glaring non-sequiter; and yet that human government should nor a mode of reasoning fraught with not intermeddle with them. Let him more terrible consequences.
study Pothier, or Blackstone, or Kent, Let us look into this principle, which ' and he will find that because a thing is is more than once distinctly announced right in itself, it does not follow that by our authors, and which is interwoven human government should do it, or into the whole substance and structure cause it to be done. Let him look into of their argument. Punishment " be the foundation, the reason, and the ing deserved and just, it cannot but be spirit of human laws, ever so superfi. useful.” If it be only deserved, then, cially, and he cannot fail to perceive, it is expedient and proper for human that although crime may deserve to be government to inflict it. But does not punished as crime, it does not follow the rich man, who is clothed in purple that it is the prerogative of human law, and fine linen, and fares sumptuously to punish it as such. He cannot fail to every day, and yet spurns the poor see, that if civil society should underman from his feet, deserve to be pun- take to punish crime as crime, or to fix ished? Does not the rich man whose upon the intrinsic demerit of guilt as heart, by self-indulgence, has been the final cause of punishment, it would rendered as hard as the nether mill- enter upon a work for which it was stone, so that no scene of wretchedness never designed, and for which it is utor wo can touch it with pity-does not terly incompetent. such a man, we say, deserve to be If crime is to be punished on account punished ? In the pure eye of God, is of its intrinsic demerit, the punishment he not as guilty-nay, few more guilty should be proportioned to the demerit" -than the poor wretch who, despa- of the individual on whom it is to fall.
But how is that guilt to be estimated, Christian theology.” They have deor who is competent to ascertain its clared that it is a great theological in
amount? Who can look into the ten terest which attaches them so warmly 'thousand times ten thousand circum- to their political creed; and hence we
stances, both external and internal, wish to restore the balance of Reason which have conduced to mould the to a perfect equilibrium, by throwing as character, either for good or for evil ? equal weight, of the same kiud, into Who can calculate the force of all the the opposite scale. Let us see if this temptations which have tended to cor- cannot be done. It is urged that the rupt, and all the good influences that murderer deserves to die, and therefore have tended to improve, the heart, and the should be put to death. Granted. then tell us how much guilt each and But is be the only person who deserves every violator of the law has incurred ? to die? By no means. All men deWho can pretend to such omniscience ? serve, not only to die a natural, but also And if we cannot estimate the intrinsic the second death. Hence, if human demerit of crime, or rather of the indi- government is to inflict punishment on vidual by whom it is committed, how men "simply because they deserve it," preposterous is it in us to make that why should not every man be put to intrinsic demerit the ground of punish- death? Such is the inevitable consement?
quence of their doctrines. From which If human laws are to inflict suffering will they recede—from their political, upon all who deserve to suffer, it fol- or from their theological creed? lows that every species of ascertained It is very evident that our authors do guilt is the proper object of penal in- not exactly understand the relation in fiction. The want of active benevo- which the expedient and the absolute lence, as well as a hundred other viola- stand to each other. In addition to the tions of the moral law, which are now proof we have already furnished on this punished by po Christian community point, we might adduce much more, but under heaven, would be made to feel we shall content ourselves with what is the sharp edge of the penal code. contained in a single passage from the Such are some of the consequences Defence of Dr. Cheever: which naturally and necessarily flow from the principle of our authors; and The reasoning of many persons on this they are sufficient to show that the snbject,” says he, “would conduct us to principle itself is unsound. They are
the conclusion that, in fact, there is no sufficient to show, though although such thing as desert to be considered in crime deserves to be punished as crime, human society; that a man is not punished, yet it is neither the duty nor the right guilty, but solely because the punishment
or ought not to be punished, because he is of human government to wield the
is useful; and therefore that no man ought power of retributive justice. That
to be punished from respect to what is . awful power can be rightfully wielded past, but solely from regard to the future.
only by the all-perfect and absolute This is the argument pursued by Hume, Sovereign of the world. Those who, but Godwin carries it ont more fully. It like our authors, would conter such a
is the result to which all must come who power on human governments, are
deny the propriety of punishing a man seeking, however unconsciously, to es
sinply because he deserves to be punished. tablish an insufferable despotism; they there is no such thing as desert; it is a
Godwin argues that, strictly speaking, would confer upon society the power, chimerical idea; and iherefore the comwithout either the wisdom or good- mon idea of punishment is altogether inness of God. We intend to resist all consistent with right reasoning. The insuch despotism, whether it springs from fliction should bear yo referevce to innothe low, sensual philosophy of Hobbes, cence or guilt. An innocent person is the or descends from the lofty heights of proper subject of the infliction of suffering the opposite system.
if ii tend to good. A guilty person is the We would not press the argumen- proper subject of it under no other view.
Now, it is not requisite to hold this tum ad hominem too closely upon our writer's system of Necessity in order to authors, but we think this is the very
come to this absurd conclusion; for if the case in which their political creed utility of punishment be absoluely the should be brought into contact with SOLE ground of its infiction, the only rea. some of the doctrines of the common son why it is just and proper to iuflict it,