ather, &c., have represented variant and changing notions, instead of the unchanging and unchangeable idea of a positive self-energizing essence, originating its own actions, in distinction from the inertness and negative passivity of matter, even in its most ethereal states? In short, have any of these words ever denoted ideas of a nature so utterly different, as those of justice and expediency? In like manner we say, in respect to the moral terms in question, there has ever been one justice, one morality, one idea of crime, and one idea of punishment.

If so, we use it as an argument that each is in its nature one, and that what does not embrace the essential idea is a phantom to which the name is erroneously applied. There is, therefore, not a human justice differing from the Divine and which is not retributive; there is not a human crime which has no moral criminality; there is not a human punishment which is wholly utilitarian, without any reference to moral demerit.

Lower economical truths are doubtless intimately embraced in the application of these ideas, although not of their essence. Yet even these related utilities lose all their vitality when severed from, or put in the place of, the higher. The relative vanishes when we lose sight of the absolute. None but an age low both in faith and philosophy, would ever countenance the separation of the divine from the human, either in morals or politics. Some think, however, that nothing is easier than to make the distinction. It is no more difficult than to draw a mathematical line from one point to another. They will make it as plain as any geometrical diagram. On the one side they place divine justice, and on the other human ; on the one side divine punishment, and on the other human, &c.; and we admit the distinction as far as respects degree, or subjects of application, or measure of perfection. But this principle of retribution or desert cannot be a matter of addition and degree. From its very nature, and its high place in God's justice, it can be no incident belonging to some species of true punishment and not to others. It is essential and elemental in all real justice, and in all real punishment, or it is nothing; it has no existence anywhere. Again, if it is not elemental in the very idea, it has no place in the divine justice. Those more consistent reasoners, then, who deny all retribution are right; and all that pious declamation which some are so fond of employing about it, as something sacredly reserved to the administration of God, is only a rhetorical flourish. If, on the other hand, it is essential and elemental, then, of course, where it is not, there is not justice and punishment; and language has been all wrong in applying these words to those human proceedings in which they have been so long and so invariably employed. This is insisted on at greater length, because those who think that they can securely occupy this middle ground, and make this distinction between the divine and human, should

be driven to the place to which they belong. The only position where they can at all sustain themselves, is that which rejects the elemental idea of justice, as essentially connected with retribution. or desert, from all law, divine as well as human.

Against such a course of reasoning as is here employed, there are objected the contemptible and puerile etymologies of Horne Tooke. Of him it need only be said, that he was of that Hobbean school to which belonged most of those who deny all retribution. He wished to prove by language, that the human soul recognized nothing fixed, absolute, or eternal. His method of reasoning, we admit, if not the reasoning itself, was based on right grounds. Had his moral theory been correct, language would unquestionably have furnished important evidence in its support. His philological conclusions, however, were false and contemptible, and nothing can show more conclusively how much language is opposed to this irreligious and atheistical school, than the wretched results at which he arrived. The true answer, then, is, not that Horne Tooke's method of reasoning from language was wrong, but that his philology was utterly false. Every scholar knows that it is unworthy of all serious notice. Right never came, as he absurdly maintains, from a word signifying "that which is ordered or commanded." This is no part of its radical idea. Right is straightness. In the principal languages, the corresponding terms have ever reference to a straight line, one of the truest emblems of perfection and unchangeableness. The English Right, the Latin Rectitudo, and the Hebrew Jasher, do, in this way, all present to the mind the idea of an absolute and perfect rule or canon, out of man (of course in God), and not something which bends and turns, rises and falls, with the internal moral condition or circumstantial expediencies of those who are required to conform to it. And so also in respect to his views of the word truth, in which the writer referred to knows no better than to follow him. Truth, we say, is not that which is trowed in the sense of opinion, but rather, as derived from another and a better view of the root, it is that in which we firmly trust-that which is believed. It is the object of faith. It is troth. It is the Greek nous, instead of Sosa. It is anoɛia, that which cannot be hidden, that which manifests itself by its own light, the real or absolute, in distinction from the phenomenal. It is the Hebrew Amuna. It is the Amen.

Such has been the pressure of the argument on this subject, that the most consistent opponents have been driven to deny the right of human government to punish at all, if the word is to be taken in the sense ever attached to it among mankind—unless, in violation of all the ends and proprieties of language, it is to be retained after the corresponding idea is rejected. One of the most popular writers on that side has lately made this admission in the fullest terms. He regards the word punishment as one from

which, without great violence, the penal or retributive idea cannot be separated.

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"It is unfortunate," he remarks, that our language furnishes no word which expresses the idea of that procedure which the state can rightfully take for the prevention of crime and reformation of offenders. We call it PUNISHMENT, which to most minds conveys a wrong idea. It imports vengeance, &c. This compound idea of punishment is wrong."

He does not mean to say that it is philologically wrong, for in this respect he has rightly defined the term as "importing vengeance" and desert; but the idea which the moral sense of mankind has attached to the word, this he means is wrong. The new philosophy of Sampson and of our Matron of the Sing-Sing prison, cannot tolerate it. To us, this war with language and fundamental ideas, is an all-sufficient reason why we should not tolerate the new philosophy. The admission is all-important, as showing how firmly the reprobated notion is connected with the word; but to what absurdity is he driven to supply its place? Why is it that "our language has no term for the idea of that procedure, &c.?" It is certainly copious enough for all other purposes. How is it, then, that a "procedure" which they tell us is so simple, besides being so constantly required, should for so many centuries have had no name, except one which is admitted to be associated with such false ideas? Is it not proof that the "procedure" spoken of is a chimera of the writer's own imagination, having no real place in the truth of things? And then, what a circumlocution to express this nameless conception: "The idea of that procedure which the State may rightfully take," &c! Surely we ought to feel grateful to a conservative Providence for having so cared for language, that certain forms of irreligious philosophy can never use it to any great extent, without being compelled to exhibit its own irrationality, in its war with ideas, and its conflicts with the first elements of thought.

Our second, or a posteriori argument may be regarded as grounded on the terms of the following propositions:-1st, A true utility and a true expediency, do of themselves require that the idea of retribution, or the punishment of crime from moral considerations, that is, for its own intrinsic demerit, or in other words, something above what is ordinarily and justly styled expediency, should enter into government.-And 2d, The lower expediencies which some would make the sole end of the state, cannot themselves be sustained without this higher element, which so intimately associates itself with that most useful thing—a sound national and individual conscience.

It has something of the air of a paradox, but this is the form in which some of the highest truths at times appear. It is the argument, from expediency, for something higher than expediency. It

affirms that it is in the highest sense useful for the prevention of crime, and of all mischief resulting therefrom, that retribution, desert, or the punishment of crime simply because it is wrong and wicked, should be acknowledged as an essential element of jurisprudence.

"You are not punished because you have stolen a horse, but in order that horses might not be stolen." A very stale anecdote, which is about on a par with the oft-repeated story of Franklin's jackass, attributes this profound saying to a certain English judge. We much doubt the truth of the story; but, at all events, we have no hesitation in maintaining, that even on its own low ground it is false, and that the law will fail even in preventing horses from being stolen, if it tells the thief, and all other offenders, that this is the highest and sole ground on which it inflicts punishment. It will fail to prevent crimes, viewed even as mischiefs and inconveniences, if it assumes such an aspect as to imbue the popular mind thoroughly with the doctrine, so evidently implied, that in its "procedures" it has nothing to do with any moral considerations; or produces the impression everywhere, that "moral guilt," as the writer in the Democratic Review maintains, "is in no sense the ground of punishment."

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Such a doctrine, when it has become popularised, must inevitably take away from that sacred feeling with which law ought ever to be viewed, if it would exert its best economical as well as moral influences. It must take away from the reverence due to ministers of justice, now openly declared to be truly ministers of justice no more, but of a mere economical expediency; in respect to which-since all moral considerations are gone-the offender may have some plausible grounds for regarding it as only based upon the convenience of the stronger, or more numerous party, in opposition to his own. He is taught to regard it as a question of temporal expediency only; and this expediency being connected with none of those moral ideas which take hold on the invisible and the eternal, and having, therefore, nothing to keep it to any permanent standard, may sink lower and lower, dragging down the law, and the courts, and the people with it; until it may well come to be doubted, whether, since there is no question of "moral guilt," the horse thief is not as good as other men who become a mischief and inconvenience to society by owning more horses than the rest. Some such result, in a greater or less degree, we may rationally suppose, would be a consequence of attempting to rule men solely through a mere intellectual calculation of expediencies, instead of that method which we believe God has ordained for all real government, namely, through the moral perceptions and the conscience. In the first place, the full doctrine implied in this significant fable of the horse thief, would, if carried out to all its legitimate results, involve a very wide departure from the spirit and language

of jurisprudence in past ages. We hazard nothing in saying that as yet, in almost all civilized countries, the law does assume to be a moral power proceeding on moral grounds. Express declarations to this effect may not be found formally announced by legal writers, or in statutes, or in judicial decisions; and yet, we contend that the spirit of criminal jurisprudence does most abundantly and most clearly exhibit it. It becomes absolutely necessary to the language of accusation, if it would have any force whatever. In the proceedings of our common law the criminal is charged with having acted, not simply mischievously, but wilfully, feloniously, maliciously. He is declared "not to have had the fear of God before his eyes," and to "have been moved and instigated by the Devil." The law makes it the duty of courts to inquire most minutely into intention. Days and weeks are patiently occupied with the question of sanity, or, in other words, whether the criminal is a moral agent. The law of evidence implies our doctrine on almost every page. Counsel, too, can neither prosecute nor defend, without the constant necessity of employing language implying that "moral guilt is a ground of punishment." The judge cannot charge the jury, or pass sentence, without adopting the same style. The Legislature cannot define crimes, or assign penalties, without using words which imply that law does and must recognize moral distinctions.

This, we say, is yet the spirit of the law in all civilized countries, although in some places it may have been paralysed to some extent, and begun to yield to the influence of an ungodly philosophy. Let us, however, suppose that this influence has become at last triumphant, and has been carried out with all its consequences and implications. It is no longer confined to Reviews, but has diffused its virus through all the forms and proceedings of law. All terms implying moral ideas of any kind have been carefully expurgated from the statute, from the writ, from the indictment, from the pleadings, from the evidence, and from the judgment. All language implying any connection with the conscience has been extracted from the very roots. Suppose this to be thoroughly done in strict accordance with the economical theory. The criminal is no longer a criminal, as far as human law is concerned. He is, in its eyes, no worse, morally, than other men. He is told that "moral guilt forms no ground for punishment." In fact, in the true view of the law, he is not punished at all. His true relation is that of a man who suffers, because his views of his own convenience have happened to clash with the estimated convenience of others who are stronger than himself. All distinctions of honor and degradation, arising out of crime, vanish from the letter and spirit of jurisprudence. In short, the law knows no moral difference between the righteous and the wicked, between those who fear God and those who fear him not.