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intend to show, that in human laws punishment is not inflicted on account of the intrinsic demerit of crime." Dr. Lewis is so perfectly clear, in his own mind, that government should punish crime as crime, that he feels authorized to sit in judgment on the motives of those by whom this doctrine is opposed. The apparent remoteness of the corner from which the attack is made," says he, "cannot disguise the motive, or conceal that virulence, so much beyond what would seem to be called forth by an ordinary question of political philosophy. They have sagacity to perceive, that if it can be made out that there is nothing strictly penal or retributive, nothing capital in human law,-neither is there in the Divine"-p. 15. This is only one passage out of many to the same purpose, which are to be found in the work under consideration. Indeed, if all the appeals to the odium theologicum · which Dr. Lewis has thrown into his Essay were expunged, it would be amazingly reduced in bulk. If his arguments were as strong as many of his passionate appeals of this kind, they would indeed be formidable.

Before we proceed to examine his arguments we would remind Dr. Lewis of a few things which, in the heat and violence of his rhetoric, seem to have escaped his memory. It is a plain matter of fact, then, that many of the most enlightened advocates of capital punishment, have entirely discarded from their views of human government the idea of retributive justice. They have repudiated this notion, not because they entertained the design to exclude the same principle from the divine government, but just because they believed that retributive justice belongs to God alone. If Dr. Lewis had borne this in mind, it might, perhaps, have moderated his judgments of men and motives, and given a milder tone to his invectives. If so, it would have spoiled much of his fine rhetoric, it is true; but we doubt whether it would have rendered his essay any the less worthy of a doctor of laws. Nearly all the great jurists. (we do not remember a single exception,) from Sir Matthew Hale down to Sir Samuel Romily, have taken a different view of this subject from Dr. Lewis. They have held it to be the great aim and object of penal

law to prevent crime and to protect society; and they have excluded the principle of retributive justice from their views of human government. The principle for which Dr. Lewis contends, he certainly did not derive from a study of the common law; for to the common law such a principle is utterly unknown. And in defending the law, as it now stands, against the attacks of its adversaries, Dr. Lewis and Dr. Cheever have done anything but wisely, in pouring contempt upon one of its most universally and most dearly recognised principles. We would submit to their consideration a single passage from Blackstone, which very clearly expresses the doctrine of the common law on this subject, as well as the sentiment of its greatest and most enlightened expounders. "As to the end, or final cause of human punishment," says Blackstone, "this is not by way of atonement or expiation for crime committed; for that must be left to the just determination of the Supreme Being: but as a precaution against future offences of the same kind."

We shall now proceed to examine the reasoning of our authors. In order to show that human punishment is retributive, or is inflicted on the criminal on account of the intrinsic demerit of crime, great stress is laid on the etymology of the term punishment. Thus, says Dr. Lewis, "we frankly admit that we attach more value to this universal etymological argument, even when its proof is found in some barbarous Chippewayan dialect, than to all the definitions of a Grotius or a Puffendorf. Pain, (poena, Toivǹ, ovos,) suffering for crime as crime, is the radical idea."-p. 12. This is the "inherent and inseparable idea belonging to the terms, punishment, penal, penalty, or to their counterparts in every human speech.”—Ibid. "When these ideas, (the ideas of sin and suffering, crime and pain') are sundered, we may, if we choose, call it compact, political expediency, or political economy; but the terms government, law. penalty, are no longer applicable. Those who still retain the words in such connections do most grossly abuse language,-an_offence so frequent in the present day, and so mischievous in its tendencies, that it would almost seem to deserve a

place in the list of statutable misdemeanors."

We believe that Dr. Lewis is a professor of languages in the University of New-York; and therefore it may be presumed, that he has had something to do with the study of language; and if so, how he could have laid so much stress upon the etymology of a word, as throwing light on a philosophical question, it is not easy for us to conceive. How he could have given the most superficial attention to the laws of language, and yet speak of any idea as being inseparably attached to a word, is entirely beyond our comprehension. We had supposed that it was known to everybody, that the connection between words and ideas is not only conventional, but that nothing is more common than for words to acquire entirely new meanings; and, in many cases, to drop and lose their primary signification altogether. The question is not about the strict literal meaning of the term punishment, as it stands in relation to moral evil; but it refers to the idea which should be attached to it, when applied to human laws. And the attempt of the Essay to settle the meaning of a word, as it is used at the sent day in reference to a particular subject, or as it stands in a particular connection, by an appeal to its etymology, and thereby to illustrate a grave question in philosophy. is a kind of pedantry which we had hoped was obsolete among philosophers. Is modern science to be dug up out of the roots of Greek, or Latin, or Hebrew words? Or is the meaning of a word, through all the changes of its form and of centuries, immutable?

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The mode of reasoning adopted by Professor Lewis, if pursued to its legitimate results, would quite demolish all his lofty sentiments about "the absolute." It is well-known, that Mr. Tooke defined the nature of law and just, by a reference to the etymology of the words. His reasoning is so edifying and so conclusive, that we shall present our readers with a specimen of it, from his Diversions of Purley; which, as the learned reader wellknows, is in the form of a dialogue between the author and Sir Francis Burdett.

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"Tooke. It is merely the past participle lag, of the Gothic and Anglo-Saxon verb legan ponere; and it means something or anything laid down as a rule of

conduct. Thus, when a man demands his right, he only asks that which it is ordered he shall have. A right conduct is that which is ordered. A right line is that which is ordered or directed; not a random extension, but the shortest between two points. A right and just action is such a one as is ordered and commanded. The right-hand is that which custom, and those who have brought us up, have ordered or directed us to use in preference, when one hand only is employed, and the left-hand is that which is lieved or left.

"Burdett. Surely the word right is sometimes used in some other sense? And see, in this newspaper before us, M. Portalis, contending for the concordat, says:— The multitude are much more impressed with what they are commanded to obey, than with what is proved to them to be right and just. This will be complete and commanded. nonsense, if right and just mean ordered

"Tooke. I will not undertake to make sense of the argument of M. Portalis. The whole of his speech is a piece of wretched mummery of pope and popery. Writers on such subjects are not very anxous about the meaning of their words. Ambiguity and equivocation are their them. strongholds. Explanation would undo

"Burdett. Well, but Mr. Locke uses the word in a manner hardly to be reconciled with your account of it. He says:'God has a right to do it, we are his creatures.'

"Tooke. It appears to me highly improper to say, that God has a right, as it is also to say that God is just. For nothing cerning God. The expressions are inapis ordered, directed, or commanded conplicable to the Deity: though they are common, and those who use them have the best intentions. They are applicable only to men, to whom alone language belongs, and of whose sensations only words are the representations; to men, who are by nature the subjects of orders and commands, and whose merit is obedience.

"Burdett.

ordered and commanded, is right and just? Everything, then, that is "Tooke. Surely; for that is only af firming, that what is ordered and com manded, is-ordered and commanded."

It is thus that Mr. Locke, by wielding the favorite weapon of Prof. Lewis; by appealing to the etymology of words, and holding the ideas thus denied to be inseparable from the words themselves, demolishes the essential difference be

tween right and wrong. If such reasoning is to be tolerated, Dr. Lewis must give up all his high-sounding phrases about "the absolute," as unintelligible jargon. He must consent to suffer the fate of M. Portalis and Mr. Locke. He must believe that the words right and just have no meaning when applied to God.

This is not all. Mr. Locke informs us, that "like other words, true is also a past participle of the Saxon verb treowan, confidere, to think, to believe firmly, to be thoroughly persuaded of, to trow. True, as we now write it, or trew, as it was formerly written, means simply and merely that which is trowed, and instead of its being a rare commodity upon earth, except only in words, there is nothing but truth in the world." It was in this learned manner that Mr. Tooke demonstrated that whatever one troweth is true, and exploded the notion of immutable truth as transcendental nonsense. If Prof. Lewis has a mind to be consistent, we would commend to his imitation the example of his illustrious predecessor.

er; nor would he invoke the power of the law to enlighten them on the subject of etymology. It is not from malice that he seems willing to brandish such weapons; he simply knows not what he does. We dare say, that he is a little angry with a certain class of his opponents at times, and that, while the fit is on him, he would have no great objection to seeing them suffer a slight twinge of pain, or pœna, just sufficient to shake their obstinacy or to arouse their stupidity, in order that they might be enlightened by his "universal etymological argument." He would not wish to punish, we are sure he would not wish to punish very severely, those who agree with him on the great subject of capital punishment, because they cannot exactly assent to all his "grounds and reasons" in favor of it.

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But, after all, what does this term pœna really signify? Does it signify suffering for crime as crime?"` If such be its meaning, and Prof. Lewis has discovered it, we must confess that he has dug deeper into this root, and extracted more light from it, than we have been able to do. It may signify pain and suffering, and, if you please,

Again. As the term spirit, as well as all other words relating to the mind and its operations, were in the first in-suffering for crime:" but how it can stance employed to denote material objects and phenomena; so their etymology has been used in order to show, that there is no such thing in all the Universe as mind or spirit, any contra-distinguished from matter. If a refusal to follow such a guide, such a principle of interpretation, were indeed made "a statutable misdemeanor," we should not hesitate for a moment in our choice: we would prefer all the pains and penalties the statute could inflict, rather than adopt such a course of philosophizing. We had infinitely rather suffer, for holding the doctrine of the great lights of jurisprudence, in spite of etymology, than to be crowned with honor and glory for subscribing to the philosophy of Horne Tooke.

But, in all seriousness, we do not really suppose, we have not the least idea, that Dr. Lewis is instigated by malice when he talks about "statutable misdemeanors:" we take this to be a mere rhetorical flourish. We are sure he would not hang, or in the least degree injure such men as Blackstone and Paley, even if he had them in his pow

convey to any mind the positive and distinct intelligence, that he who bears the thing signified, really suffers for crime ?-crime, is more than we, with our best optics, are able to perceive. Indeed, for our part, we regard this as a mere arbitrary assumption of the learned Professor, on which he hastens to erect an equally arbitrary inference of law. But we may easily waive all this, inasmuch as no respect is due to such etymological arguments, when applied to philosophy, For all philosophies founded on etymology, or dug up out of the roots of words, rather than derived from the light of things, we have long entertained no other opinion than that Mr. Hazlitt has expressed for the unutterably wretched philosophy of Horne Tooke: "I would class the merits of Mr. Tooke's work," says he, "under three heads: the etymological, the grammatical and the philosophical. The etymological part is excellent, the grammatical part indifferent, and the philosophical part to the last degree despicable; i. is down-right unqualified, unredeemed nonsense."

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Dr. Cheever, no less than his learned co-adjutor, lays great stress upon the primary meaning of the words justice, desert, and punishment. The words desert, justice, punishment," says he, "convey ideas over and above the idea of utility. We do not punish because it is useful, but because it is deserved and just; and being deserved and just, (we italicize his words,) it cannot but be useful."-p. 193. Now, we are perfectly free to admit, that there is such a thing as ill-desert; that there is an intrinsic hideousness and deformity in all crime, and that the criminal really deserves punishment. We do most heartily subscribe to all that our authors have said, with respect to the existence of conscience, and the immutable distinction between right and wrong: we all feel that moral evil in every form and shape deserves to be punished. We utterly loathe and repudiate the shallow philosophy of a Hobbes and a Bentham, by which man is 、stripped of his high moral powers, and made like unto "four footed beasts and creeping things." But what does all this signify? Does it follow, that because crime, that because all sin deserves to be punished as crime and as sin, that it is therefore the prerogative of man to punish them as such? To the eye that has even looked into the spirit of human law, it is not possible to present a more glaring non-sequiter; nor a mode of reasoning fraught with more terrible consequences.

Let us look into this principle, which is more than once distinctly announced by our authors, and which is interwoven into the whole substance and structure of their argument. Punishment "being deserved and just, it cannot but be useful." If it be only deserved, then, it is expedient and proper for human government to inflict it. But does not the rich man, who is clothed in purple and fine linen, and fares sumptuously every day, and yet spurns the poor man from his feet, deserve to be punished? Does not the rich man whose heart, by self-indulgence, has been rendered as hard as the nether millstone, so that no scene of wretchedness or wo can touch it with pity-does not such a man, we say, deserve to be punished? In the pure eye of God, is he not as guilty-nay, few more guilty -than the poor wretch who, despa

rately urged by hunger, saves both himself and family from starvation, by the theft of a loaf of bread? If so, then according to the principle of our authors, "it cannot but be useful" to punish him, and the strong arm of the law should be invoked, not only to punish him as he deserves, but to compel him to give of his substance to the poor. Precious philosophy this, for the agrarians of the day; who, no doubt, will roll it as a sweet morsel under their tongues. Will our authors reply, as we conceive all sensible men should reply, that although there are many things which deserve to be punished, yet such is the necessary imperfection of human' law, that it is not proper for human government to take cognizance of them, but to leave them to the all-perfect ruler of the world? If they should make this reply, (which all great jurists, both of the civil and of common law, have made in such cases,) we have nothing more to say, except that they have most sadly shrunk from all their lofty declamations about the morally right, and the absolute; and, after all, settle down, in matters of human government, upon the low and vulgar ground of expediency.

Let any man study the great jurists of France, or of England, or of America, and he cannot fail to discover that many things are right in themselves, and yet that human government should not intermeddle with them. Let him study Pothier, or Blackstone, or Kent, and he will find that because a thing is right in itself, it does not follow that human government should do it, or cause it to be done. Let him look into the foundation, the reason, and the spirit of human laws, ever so superficially, and he cannot fail to perceive, that although crime may deserve to be punished as crime, it does not follow that it is the prerogative of human law, to punish it as such. He cannot fail to see, that if civil society should undertake to punish crime as crime, or to fix upon the intrinsic demerit of guilt as the final cause of punishment, it would enter upon a work for which it was never designed, and for which it is utterly incompetent.

If crime is to be punished on account of its intrinsic demerit, the punishment should be proportioned to the demerit of the individual on whom it is to fall.

But how is that guilt to be estimated, or who is competent to ascertain its amount? Who can look into the ten ' thousand times ten thousand circumstances, both external and internal, which have conduced to mould the character, either for good or for evil? Who can calculate the force of all the temptations which have tended to corrupt, and all the good influences that have tended to improve, the heart, and then tell us how much guilt each and every violator of the law has incurred? Who can pretend to such omniscience? And if we cannot estimate the intrinsic demerit of crime, or rather of the individual by whom it is committed, how preposterous is it in us to make that intrinsic demerit the ground of punishment?

If human laws are to inflict suffering upon all who deserve to suffer, it follows that every species of ascertained guilt is the proper object of penal infliction. The want of active benevolence, as well as a hundred other violations of the moral law, which are now punished by no Christian community under heaven, would be made to feel the sharp edge of the penal code. Such are some of the consequences which naturally and necessarily flow from the principle of our authors; and they are sufficient to show that the principle itself is unsound. They are sufficient to show, though although crime deserves to be punished as crime, yet it is neither the duty nor the right of human government to wield the power of retributive justice. That . awful power can be rightfully wielded only by the all-perfect and absolute Sovereign of the world. Those who, like our authors, would confer such a power on human governments, are seeking, however unconsciously, to establish an insufferable despotism; they would confer upon society the power, without either the wisdom or goodness of God. We intend to resist all such despotism, whether it springs from the low, sensual philosophy of Hobbes, or descends from the lofty heights of the opposite system.

We would not press the argumentum ad hominem too closely upon our authors, but we think this is the very case in which their political creed should be brought into contact with some of the doctrines of the common

Christian theology." They have declared that it is a great theological interest which attaches them so warmly to their political creed; and hence we wish to restore the balance of Reason to a perfect equilibrium, by throwing as equal weight, of the same kind, into the opposite scale. Let us see if this cannot be done. It is urged that the murderer deserves to die, and therefore the should be put to death. Granted. But is he the only person who deserves to die? By no means. All men deserve, not only to die a natural, but also the second death. Hence, if human government is to inflict punishment on men "simply because they deserve it," why should not every man be put to death? Such is the inevitable consequence of their doctrines. From which will they recede-from their political, or from their theological creed?

It is very evident that our authors do not exactly understand the relation in which the expedient and the absolute stand to each other. In addition to the proof we have already furnished on this point, we might adduce much more, but we shall content ourselves with what is contained in a single passage from the Defence of Dr. Cheever:

The reasoning of many persons on this subject," says he, "would conduct us to the conclusion that, in fact, there is no such thing as desert to be considered in human society; that a man is not punished, or ought not to be punished, because he is guilty, but SOLELY because the punishment is useful; and therefore that no man ought to be punished from respect to what is past, but solely from regard to the future. This is the argument pursued by Hume, but Godwin carries it out more fully. It is the result to which all must come who deny, the propriety of punishing a man simply because he deserves to be punished. there is no such thing as desert; it is a Godwin argues that, strictly speaking, chimerical idea; and therefore the common idea of punishment is altogether inconsistent with right reasoning. The infliction should bear no reference to innocence or guilt. An innocent person is the proper subject of the infliction of suffering if it tend to good. A guilty person is the proper subject of it under no other view. Now, it is not requisite to hold' this writer's system of Necessity in order to come to this absurd conclusion; for if the utility of punishment be absolutely the SOLE ground of its infliction, the only reason why it is just and proper to inflict it,

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