then this conclusion is perfectly correct. And if our courts could take perfect cognizance of future results, so as to be sure that in any given case this method would, on the whole, be productive of the great est good, they ought to punish the innocent as much as the guilty. This monstrous proposition is just a fair result of shutting out the idea of simple justice in view of desert as one of the ends of penal infliction. The moral sense of the human mind intuitively demands and regards justice as one of the objects of such infliction; a truth which we think

every reflecting mind must acknowledge, if it be not blinded by a system of philo. sophy founded solely in expediency."p. 187-9.

We have made a long extract; but if we had made it shorter we could not have done justice to the author's peculiar mode of handling this great subject. We could not have shown with what facility he can darken a difficult question by words without meaning, and by images without application. We intend to take this whole passage to pieces and show of what materials it is composed.

In the first place, what have "courts of justice" to do with the question in controversy ? It is not affirmed by Hume, nor by Godwin, nor by any body else, that courts have any thing to do with the question of expediency, or with the policy of the law. This is placed entirely beyond their reach, both by conscience and by expediency. It is universally conceded that judges have nothing to do with the question of expediency; that they are sworn to decide according to the law as it is. It would be a great outrage on every principle of expediency as well as of conscience, for a court of justice, from its views of policy, even if those views were perfectly correct, to condemn the innocent or to acquit the guilty. The bare thought of such a thing is sufficient to arouse a feeling of indignation; and hence the illustration of Mr. Cheever is well calculated to awaken such a feeling in the breast of the unreflecting, who do not see its total irrelevancy, and blindly direct it against the principle of his opponents. This is a great blunder in Dr. Cheever, but it is an exceedingly slight one when compared with some of those which still remain to be noticed.

Let us suppose, then, that Dr.

Cheever did not mean to say, that if expediency be the sole ground of punishment, then, not courts of justice, but the law-making power may, if it is seen to be useful, punish "the innocent as much as the guilty." Such a position would not, at least, betray a gross misconception of the point in dispute; but still it would involve it in no little obscurity. For what is meant by "the innocent" in such an assertion? If' they are those who have never transgressed any law, either human or divine, we admit that it would be monstrous, on every scheme of political justice, to punish them. It would be at war with the principle of utility no less than with that of "simple justice in view of desert." It is very true, that if utility is the sole ground of punishment, and if it were useful to punish the innocent, and if there were no higher principle in the universe, then it would be right to punish the innocent. But what does all this signify, when it is admitted that it can never be useful to punish the innocent? Dr. Cheever forgets that human government is a great practical affair, not built up out of abstractions, but out of such materials as are not condemned by the moral law, and admit of being so adapted to the actual nature and state of things in the world as to subserve the purposes of wisdom and goodness; and that, in the view of the true statesman, it is no objection to political principles, that they furnish no solution of imaginary problems; that they provide no remedies for impossible cases.

If he refers to those who have transgressed the moral law, but not the law of the land, we ourselves contend, and ask him to admit that no law should be made to punish them; because moral guilt is not the ground of punishment, and it is not expedient for men to punish except by means of law. Though they may have violated the law of God yet if a law were made to punish them, it would be an ex post facto law, condemned alike by our constitution of government and every principle of a sound expediency. If the act is already passed, whether it were tainted with moral guilt, or were as pure as the moral law itself, it should not be punished by subsequent legislation. We admit this is a fair consequence of our principles; and that, in this respect,

guilt and innocence are equal in the eye of human law and of expediency. That is to say, that neither should be punished by the law of the land until there is a law of the land to punish them, and that all penal legislation shall refer to the future and not to the past.

But if he intends to say, that if expediency be the sole ground of human punishment, then, in case the public good require it, a law may be enacted, by which an act, perfectly innocent in every point of view, prior to its enactment, is rendered penal;-if this be his meaning, we say, the inference is freely and fully acknowledged. This principle is sanctioned by the legislation of the whole Christian world. Penal of fences are divided, in all our elementary treatises on that branch of law, into two classes, namely: the mala in se, and the mala in prohibita. In no point of view, then, can this remarkable passage be made to serve the doctor's purpose it is a mere confused jumble of words and ideas, possessing a far greater capacity to general heat than light.

We are utterly amazed at the assertion, that "if the utility of punishment be absolutely the SOLE ground of its infliction," then we cannot escape the absurd conclusion of Godwin, that "there is no such thing as desert." This is one of Dr. Cheever's inferences from our doctrine, as we have seen; but we should deem it one of the greatest calamities of life, were we compelled to allow Dr. Cheever to draw conclusions for us. Who, beside himself, would infer, that because it is not the prerogative of human governments to punish crime as crime, therefore, there is no such thing as crime in the world? Who else would infer, that because society punishes crime, not on account of its intrinsic demerit, but to prevent its recurrence, therefore, it never did, and never can, occur? that because society punishes crime, not because it deserves punishment, but to protect itself against the consequences of crime, leaving its intrinsic desert to God; therefore, all desert, all guilt, is quite banished out of the universe? Shall we believe, for the sake of Dr. Cheever's learned argument, that if crime were to cease to be punished, it would cease to be crime? that guilt can neither be seen

VOL. XIX-NO. XCVIII.

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nor felt, except by means of the pains and penalties it is made to bear? It is amazing, that any man should undertake to show that expediency is not the sole foundation of penal law; and yet argue from a principle which inevitably plunges him into the lowest depths of the lowest form of expediency; making pain and suffering essential to the very existence of moral distinctions. Dr. Cheever should revise his logic.

We have one more criticism to make on the passage under review. Dr. Cheever is quite sure, that "the punishment of death for murder" has justice, retributive justice, "simple justice in view of desert," is one of the ends of its infliction. We have seen his arguments in favor of this position; they are wound up with the assertion, that this is truth which "every reflecting mind must acknowledge, if it be not blinded by a system of philosophy founded solely in expediency." Now, we presume that Dr. Cheever is acquainted with the writings of Samuel Taylor Coleridge; he has, in the work before us, made several quotations from The Friend. If so, he must be aware that Coleridge held expediency to be the sole ground of human laws. Dr. Cheever has quoted from the fourth and fifth essays of The Friend; we commend to his notice the following extract from the third essay of the same volume: "Every institution of government," says Coleridge, "needs no other justification than a proof, that under the particular circumstances it is EXPEDIENT. Having, in my former numbers, expressed myself (so at least I am conscious I shall have appeared to do to many persons) with comparative slight of the understanding considered as the sole guide of human conduct, and even with something like contempt and reprobation of the maxims of expediency, when represented as the only steady light of the conscience, and the absolute foundation of all morality; I shall perhaps seem guilty of an inconsistency, in declaring myself a zealous advocate for deriving the origin of all government from human prudence, and of deeming that to be just which experience has proved to be expedient." Now, if the assertion of Dr. Cheever be true, it follows that the mind of Coleridge was "blinded by a

system of philosophy founded solely in expediency" by a system of philosophy which he utterly repudiated. Never was there a more strenuous advocate of the absolute,-in its proper place, than Mr. Coleridge.

It is remarkable, that in opposing the doctrine of his adversaries, that expediency is the sole ground of human punishment, Dr. Cheever is careful to represent such writers as Hume and Godwin as its chief supporters. He seems determined not to lose the powerful influence of the odium theologicum. Of the fact, that Coleridge held the same doctrine, and was a zealous advocate of it, he says nothing; and he is equally silent with respect to the fact, that it has only been maintained by the great lights of jurisprudence, both in England and America. On both sides of the Atlantic it has been advocated and upheld by Christian philosophers and profound statesmen. It has received the sanction of the wisdom and experience of ages; it has been emphatically the doctrine of great thinkers; and it ill-becomes those who oppose it, to speak of the shallow philosophy of the present day. It is not to be sneered out of existence, nor suddenly demolished by snatching great principles from their appropriate spheres, and wielding them as mere cant phrases.

Our authors have shown no little solicitude, as they certainly should have done, to prove that their views of human government do not impart to it a revengeful, harsh and forbidding aspect. But a closer view of this subject will, we think, show that they are mistaken, and that their attempts in this way

have been unsuccessful. Let us consider, for example, the following passage from Professor Lewis:

"If penalty, then, has reference primarily, if not solely, to the intrinsic demerit of crime; if the principle pervades all moral law, divine or human, just in proportion as it is a law-then we see the propriety of that much abused and misun derstood term, retributive or vindictive justice. It is that which the law, as the highest (although it may be imperfect) earthly representative of Divine authority, vindicates, claims, or challenges to itself, as its peculiar prerogative, and thus abstracts it from that private exercise, in which it would be no longer vengeance,

but revenge. It is in this sense, that the Deity, as the sole fountain of all law, declares in the Old Testament Scriptures, and repeats in the New-"Vengeance is mine." How often do we find this text perverted to a sense the very opposite of that which was intended,-a sense which, if carried out, would sweep all law from the Universe, except that which was exercised by the direct, miraculous, personal act of the Deity, without the intervention, in any case, of any intermediate agents. Vengeance belongs to God, says some modern theologues, therefore, human laws which is a word nearly synonymous, is should not exercise it. So also justice, claimed as his peculiar attribute, and therefore, too, must form no ingredient in human legislation."—pp. 28, 29.

In regard to the terms vengeance and revenge, the author says, in a note, that although these words are from the same radical, yet the difference is so striking, that it seems strange they should ever have been confounded." What has become of the learned author's etymology? He wonders, as we have seen, that any one should be so stupid as not to derive the present meaning of the terms punishment, penalty, and so forth, from their roots; and he seems inclined to think, that a

departure from the meaning thus derived, is so gross an abuse of language, it ought to be made a "statutable misdemeanor." But now the wonder is all turned the other way; and although the term revenge comes from the same radical with vengeance, it is passing strange that it should be thought to have the same meaning! We do not thor finds it so much easier to wonder, wonder, however, that the learned auin the present case, than to render a for no mortal man can defend such a reason, or to preserve his consistency; cause without contradicting himself.

It seems, then, that if a private individual inflicts such punishment on another as he deserves, it will be revenge; but if society inflicts it, it will be simply vengeance. Now, we are free to confess, that this distinction is rather too fine for our optics. If we had a mind to deal in such arbitrary distinctions, we do not see why we might not just as well say, that if men in their social capacity, and law, punish criminals on account of their moral guilt, it is revenge; and that when God punishes

them therefor, it is simply vengeance. For our part, it seems to us, that whether an individual, or society, or the Supreme Being, punishes a man simply because he deserves it, and he actually does deserve it, the punishment is just; it is not vengeance in the one case and revenge in the other; and the only reason why men should not undertake to punish crime as such, is because they have not been authorized to wield the awful power of retributive justice; for the proper exercise of which they are, both in their social and in their individual capacity, wholly incompetent. If any "modern theologue" has supposed, that God challenges all justice to himself, both retributive and administrative, or public justice, leaving no kind of justice to human society, then we admit that their doctrine does directly and irresistibly dissolve all human government. It is not necessary that their interpretation of Scripture should even be carried out," in order to sweep all human law from the earth; for it carries itself out. We confess, however, that we have met with no such modern theologues; but we admit that wherever they may be found, or whoever they are, they should be rebuked. But let us see how Professor Lewis carries out their views, and demolishes them by a reductio ad absurdum:

"Vengeance belongs to God, say some modern theologues, therefore, human laws should not exercise it. So also justice, which is a word nearly synonymous, is claimed as his peculiar attribute; and therefore it, too, must form no ingredient in human legislation." Now, in our view, there is not the least possible degree of angry perturbation in the bosom of God; and that the words vengeance and justice, when applied to Him, are not only nearly, but perfectly synonymous. We are sure that Professor Lewis did not intentionally mean to deny this position, when his argument was coined and sent forth to the world.

Let us look at it again, for it deserves attention. This argument is in the form of a reductio ad absurdum; being designed to expose the folly of those who deny vengeance to human government, because God challenges it to Himself, by showing that the same

argument would deny justice to human government. Now, what does this mean? Does the learned author seriously intend to maintain the thesis, that vengeance, as contradistinguished from retributive justice, belongs to human government? Surely, this cannot be his intention; he has merely committed an inadvertency.

Let us suppose, then, as in all charity we are bound to suppose, that when God says, "Vengeance is mine," Professor Lewis understands Him to challenge nothing more than simple justice to Himself. His argument will then stand thus: "Justice belongs to God, say some modern theologues, therefore, human laws should not exercise it. So also justice-." Truly, we may as well say that justice belongs to God; for in saying this, we merely say the same thing over again; and so the reductio ad absurdum whirls around in a circle, and returns upon itself. It ends in the proposition with which it begins-and what is that monstrous proposition? What is that frightful conclusion which should drive us from the doctrine from which it is deduced? Why, this frightful conclusion is the doctrine itself; the very thing it is intended to overthrow, namely, that retributive justice belongs to God, and therefore, "forms no ingredient in human legislation." Would he say, that he does not ascribe retributive justice to God in the last clause, but justice in a lawyer sense,-in that sense in which it sees to the enactinent and execution of laws for the good of society; and therefore he does not go around in a circle? If so, we reply, that it is not true that justice, in any such sense, belongs to God alone; this is believed, neither by Professor Lewis nor by his adversaries. This is evidently one of the confused ideas in his mind, because he supposes that his argument, his reductio ad absurdum, leads to the overthrow of all social law; but, in this sense, justice is ascribed to God, exclusively, only by imaginary antagonists. If Professor Lewis had wound up this argument with three points of admiration instead of one, we think they would have been admirably well placed.

Thus, Professor Lewis goes round in a circle, being led captive by the ambiguity of words, and rejoicing in his

strength, demolishes a great doctrine by a reductio ad absurdum, which terminates in the very doctrine demolished, leaps from thought to thought with the most delightful activity and freedom of motion, knocks down his man of straw, scatters him to the four winds, claps his hands with admiration over the thing he has done, and carries all odds over the embattled ranks of the puny modern theologies." We should not have dwelt thus minutely on a single passage, if there had not been more such in the essay from which it is taken; but as it is, we have deemed it proper to give a searching analysis of at least one passage of the kind, in order to show the importance and the necessity of greater care, of greater patience and accuracy of thought, when such momentous questions are to be discussed, or the word of God is to be interpreted.

For our part, we have never dwelt on those simple words, "Vengeance is mine, I will repay, saith the Lord," without a feeling of solemn awe. They were intended to restrain every feeling of resentment within its proper limits; and to every believing and considerate mind, they are amply sufficient for that purpose. The moral government of God is perfect; the moral guilt, the intrinsic demerit of no man will go unpunished, unless it be right that it should be so. It is sufficient for us, that he to whom all things are known, and who can weigh all things in the most exact balances of justice, will one day call all men to account for the deeds done in the body. In view of this great and solemn truth, we would not, for worlds, advocate the doctrine that man has, in any capacity, the right to punish his fellow man for the intrinsic demerit of crime, or on account of his moral guilt. We do not stop to consider your nice verbal criticisms about vengeance and revenge; it is sufficient that we see and feel the great truth, that God is the judge of the quick and the dead. It is sufficient, that we are authorized both by the law of nature and the law of God, to protect ourselves against private aggression, by self-defence if needs be, and against public wrong by penal law; we feel no desire to anticipate the great day when all must stand in trembling expectation before the throne of God. If God doth

inflict retributive justice, it is right; if he doth not, it is merciful. We are perfectly willing to leave the whole moral government of the universe in his hands.

"If you see a wagoner in the streets needlessly beating his horse," says Dr. Cheever, "you will wish to beat the wagoner." This may be true; but ought you to beat him? The question is not whether he deserves to be beaten, but who should beat him, and why he should be beaten. Dr. Cheever says,

he wishes to beat him; but surely he would not do so. And if this “ deep, spontaneous feeling, that the wagoner deserves punishment," is no reason why the doctor himself should punish him, no more is it why society should do so. In so far as the intrinsic demerit of the man is concerned, both may safely leave it to a higher and a holier tribunal.

We condemn not the spontaneous feeling, for all good must experience it; but we cannot exactly approve the wish to gratify it. The emotion, the spontaneous excitation of the moral sensibility, is well; it may burn to the centre of the soul, provided it do not arouse and inflame (as it is, alas! too apt to do) the malignant passions of our nature. It may do all this without just censure or condemnation; but let it never be mentioned while we are speaking of the rules of private conduct or the maxims of public justice. It is the overflowing source of all lynch-law; it has stained the penal codes of past ages with barbarities too shocking to be mentioned; and its abominable pollutions have not yet been swept from the laws of the Christian world. It is a fire to be restrained by all the powers within us and above us, and not indulged. We have witnessed its manifestations even in our own age and country; and we have shuddered with indescribable horror at the exhibitions of its terrific power. In one of the most enlightened cities of our Union have we seen learned men, and intelligent men,-aye, and godly professors too-all congregated together, and burning with the desire to gratify this feeling of vindictive wrath. We have seen them, with clenched teeth, and pale lips, and flaming eyes, seize their victim, reeking with the blood of his fellow man, and drag him to the stake,