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HUMAN JUSTICE, OR GOVERNMENT A MORAL' POWER.I
By Professor Tayler LEWIS, LL.D., New York University. The present article, as continued from the January number of the Biblical Repository, is occupied with the argument from Scripture, and with answers to objections.
It has been shown that the moral or retributive power of human law is affirmed à priorioby the moral sense, and that it is also demanded by a true expediency. The previous considerations have fully prepared us for the third position, namely, that it is a doctrine which also finds a most direct support in the written Word of God. It might be proper here to insist, in the first place, upon arguments drawn from the Jewish code. The fact that it was given by God, does not, on that account, make it any the less a human government in its practical application to human affairs. It prescribes laws for men, to be executed by men, designed for the ordinary good of men, and to punish the ordinary crimes of men. As the laws of a human government, they differ from those of other nations only in their superior wisdom and adaptedness because the direct offspring of the Divine mind; but in their essential elements they are the same with any other system for the regulation of human conduct on earth. It may be that they are not to be followed, at all times, in respect to modes and degrees of penalties; but certainly, no reason can be given why, as far as regards the ground, and nature, and reason of punishment, the Jewish thief or murderer was to be dealt with on any other principle than would be applicable to the same class of offenders in any other country. We speak now especially of the national criminal jurisprudence, aside from the purely religious precepts and prohibitions ; or, in other words, of its application to those offences that might have been committed in any other nation as well as in the land of Judea.
Now, in the Jewish criminal law, the doctrine of moral guilt being primarily the ground of punishment—whatever subordinate considerations might have had place—stands out too prominently to be mistaken by any honest inquirer. Views of expediency may doubtless come in as lower aims, yet there is not merely a total absence of that favorite style of speech which marks the modern economical theory; there is also, throughout, a spirit, a usus loquendi, altogether alien to that philosophy which would find in it the
1 Continued from page 95.
great or sole end of government. Desert is everywhere presented as the first ground of punishment. The murderer, for example, was to be put to death, not primarily for the peace and good order of society, but because, if he was not punished, the land remained “polluted with blood ;” a crime unvisited by penalty, and one, too, which human laws could reach, was insulting high Heaven; satisfaction had not been rendered to the law, On this account they were not allowed to spare the murderer, nor to take any satisfaction for him. If guilty of wilfully taking his neighbor's life, he was to be put to death, because his crime deserved it,' and the State, by sparing him, became a partner in his guilt. “Thou shalt consume the evil from thy midst,” is the constant declaration attached to judicial commands and executions; and this, too, as the context shows, was the evil in its moral, rather than its physical aspects. “That it may be well with thee,” it is said ; but this well-being is most clearly held forth, not on any grounds of what would now be termed expediency, but solely with reference to the divine favor, as following the strict execution of the law in its moral aspect. Nothing can be clearer than that the Jewish magistrate was to punish crimes as crimes, or, to use the language of Dr. Arnold, “because they were wicked.”
But we would not so much rely upon proof drawn from the whole current of the Old Testament, as upon
express declarations of the New. Before proceeding, however, to direct citation, it may be best to make use of a little preliminary reasoning. One of the most trite arguments on the other side of this question, is derived from the oft quoted and oft perverted words—“Vengeance is mine, saith the Lord.” Along with this there is a very common confounding of vengeance and revenge, as though the terms were synonymous. The Reviewer, to whom we have before alluded, has fallen into this very vulgar error. If the term vengeance denotes a wrong principle, it certainly cannot be declared to be a prerogative of God; if a right one, there is no reason, primâ facie, why it may not pertain to human governments; unless there are grounds for believing that it has been expressly withheld from them, or exclusively reserved to the divine administration. Now, this is the very position which is often so complacently assumed by writers on the other side. They might just as well take everything else, and dispense at once with all argument. Vengeance belongs to God, they say; and then they proceed to talk very piously, and to profess a holy horror at the thought of “human hands grasping the awful power of retributive justice, and dragging it down from the high and holy sphere to which it belongs, into the lower region of human polity.” This strain of argument, too, is sometimes, on account of temporary convenience, adopted by some who show by other reasonings, equally valid and equally sincere, that they have really no belief at all in this high and holy principle of retribution as belonging to the divine government any more than to the human.
among many other places, Numbers 35, 33.
All this, we say, is a pitiful begging of the question. We do not maintain that man, as man, by virtue of anything inherent in human nature simply, has a right to punish retributively; because we would most strenuously contend, that in himself, and without respect to any divine sanction, he has no right to punish at all, on any ground whatever. This, however, we maintain, has been most expressly given to him with all the inherent and inseparable ideas that pertain to it; only in a lower degree, and with applications limited by the circumstances in which he is placed. Man is permitted to have not merely a shadowy or counterfeit, but a real government, with real, that is, divine sanctions.' He is not only permitted, but he is also required to punish crimes, as crimes ; and is even held guilty by the Almighty, if he suffers any expediency to interfere with the duty, when there are no disabilities (such as are afterwards specified) in the way of performance.
" Vengeance is mine, saith the Lord;" but if it can be shown that the true human magistrate really bears the sword of God, and not of the people, or of any earthly expediency merely, then the vengeance, or retribution, or visitation of crime which pertains to him, is really the Lord's vengeance.
This presents the great, and on this branch of our subject, the only question.
Is legitimate government among men a divine institution, or is it self-originated or self-constituted, not only in its forms, but in its sanctions, ultimate principles, and grounds? This, we repeat it, is above all others the great political question for the age.
We often meet with the distinction between the rights and duties of the individual or individuals, and those of the State. The individual or individuals, it is said, have no right to punish, even on the ground of expediency. But if the State is only an aggregation of individual parts, if it has no sanctions and no authority which it does not derive from its members, how will it ever be able to get to itself that which is denied to belong to the source of its power?
Nothing can be clearer than that, in the New Testament, not only an individual, but any number of individuals, are expressly forbidden to exercise any kind or degree of violence in the resistance of evil. They have no right, as individuals more or less numerous, even to infliet a blow; much less to put to death any one on the ground of any previous injury, or because the conduct of any one may have been an inconvenience to them, or because they may have reason to fear any future inconvenience from others if he is not made to suffer. The words of Christ on this point are too plain to be mistaken, and numbers can make no difference
I say unto you resist not evil,” or “the evil man ”—“Avenge
not yourselves.” As an individual, therefore, a man has no right, under the plea of promoting his own convenience, to imprison another, or to inflict upon him any loss, or to put him to any pain whatever. So strong is the language, that we wonder not at those who regard it as forbidding all private or national defence of every kind; but whatever admission may be made in respect to the repelling of instant and sudden aggression, certainly the right of individuals to inflict pain prospectively, for the sake of reforming, or on the in terrorem principle—for the sake of the effect on the future conduct of others—receives no sanction from the words of Christ. To this extent, at least, must their interpretation be carried, or they mean nothing. This much is plain beyond all controversy. Now for the next step.
If an individual man is forbidden to do this on any grounds of expediency or convenience, he certainly cannot suppose this solemn injunetion dissolved, because in these objects he associates with him one of his neighbors. Will the mere aggregation, then, of three, or four, or ten, or a hundred, have any more effect in tako ing the case out of the direct words of the prohibition? Will mere numbers make right for an aggregated many what is wrong for the individual or the few—unless to the former, when rightly constituted, there comes from some source, out of and above itself, an idea or a principle which transforms it into something of a higher nature; thus making a difference of essence instead of mere modification or degree? :
Unless above himself he can
Nowhere is this sentiment more true than in this very matter of government. Here, if anywhere, humanity wants something out of its own sphere.
Now, how shall this power, so expressly denied to individuals, be acquired by those bodies, or rather masses (as some are fond of styling them) which claim to have no higher authority than that which comes only from such-aggregation? In other words, how do those combinations, or rather, organisms, called states and governments, get the right to punish at all; either for desert, or for prevention, or for reformation? We defy any rational man, who believes the declaration of Christ, to give, consistently, any other than one of two answers. He must admit that human government, when truly such, and when it truly employs the term punishment, and uses the thing signified by it, has a divine sanction, a divine authority, and a divine institution that does not belong to men as individuals or mere aggregations of individuals; in other words, that the lawful magistrate bears the sword of God, and thus, by exercising a true retribution, is not liable to the charge of revenge, or of violating the commands of Christ; he must admit this, we say, or take the only other ground, that whenever that thing commonly called human government, uses violence of any kind to wrong doers, it is a forcible resistance of evil by evil, exerted by some individuals against others; or, in other words, an extension or acting out on a larger scale of the condemned principle of individual revenge.
Thus reasons the no-government man. Assuming as his premises that the State has no such divine sanction, his conclusion is absolutely unanswerable. With all that outcry, then, about revenge, which is made by the defenders of the' merely economical scheme, there is no other way in which they can escape from this latter class of antagonists, or save punishment of every kind from the charge of being revengeful, than by resorting to the doctrine of desert, and of law as a moral power instituted and sanctioned by God.
Retribution, then, instead of being revenge, is the very ground upon which the infliction of pain upon wrong does escape the charge. In other words, to punish crime because it deserves to be punished,-a power which the State can only have from God, -is a holy and righteous principle which when placed first conserves every subordinate good or expediency, and is the ground on which individuals are required not to avenge themselves ; to visit it with pain, or painful constraint, on no higher ground than that it is inconvenient, especially when there is a denial of any divine sanction for so doing, is vindictive in the lowest sense of the word. It is regulated Lynch law, only carried out by masses (instead of individuals acting severally in visiting all aggression on themselves), yet truly differing from the individual exercise in no essential element of its character.
We think we can understand the position of the no-government man; but it does seem amazing that any one should assert the right of the state to punish at all, much more that he should maintain that it may exercise so high a power as that of taking life, merely as a matter of convenience or expediency—at the same time rejecting all that can give it efficacy, even as an expedient-denying, too, that it acts at all“ on the ground of moral guilt," or that it has any divine institution, either as respects the particular penalty, or the general moral authority of government. There is no difficulty in understanding why the thorough-going and consistent opponent of the death penalty should be so hostile to the doctrine of retribution. He sees that if it is allowed to be made a question of desert or intrinsic demerit, the moral sense decides at once the whole controversy by a direct appeal to the fitness of things, without any long and utilitarian calculation of effects and consequences. It affirms à priori, and without hesitation, the solemn declaration of the patriarchal law, that for wilfully shedding the blood of a human being, the most fit and righteous retribution is the death of the