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The strictly natural penalties of moral law, the rebuke of conscience, the sense of shame, of remorse, the obliquity and depravity of nature and consequent suffering which follows sin, are hardly thought of or spoken of as just or unjust. These consequences are looked on as inevitable. The connection is said to be one of nature, and is rarely regarded as such a direct ordination of God as to call forth the judgment of just or unjust. The word “justice,” when we are seeking for its strict and peculiar meaning, is found to pertain to law in its limited sense as a command with declared sanctions. Concerning such a law the question of justice may arise at two points: as to the right of the lawgiver to command at all, to lay any penalty ; as to the fitness of laying the very penalty laid. In answering the first inquiry, the rightfulness of the authority whose commands are under discussion, we are thrown back on purely moral grounds, on the decisions of our moral nature as to duty under the relations which we sustain to our fellow-men and to God. Here again, therefore, justice and righteousness mean the same thing, and to say of a government that it is just, is the same as to say of it that it is righteous -- that its existence and claims are in accordance with our moral constitution, in accordance with individual and social exigencies, and that its action, therefore, has the sanction of conscience.
When we speak of the justice of a particular law, we refer to the wisdom of the end it proposes, and of the means, the penalties by which it seeks to reach that end. If it goes beyond the wants of the parties concerned, if it imposes a penalty disproportionate to the exigency, we say that it is an unjust law. Here evidently the question is one of wisdom; whether the particular government in itself just, has wisely settled its own province, defined its own duties, and sagaciously, with due moderation and severity, fitted its motives to the results to be reached, bringing sufficient incentives to the individual and sufficient safety to the community.
Here also, as in the previous case, the sense of justice rests back on the sense of right. We have not merely to do
with correctness or error, as in a mathematical solution, but with the moral obligation of the lawgiver to be wise, correct in his command. If the given law falls short of its office, or overpasses it, there is wrong with the ruler — that failure in duty to which we give the particular name of injustice ; and the law which reveals this delinquency, we call an unjust law,
Our sense of justice, then, is nothing more nor less than our sense of right called into exercise in connection with law in its limited, civil mcaning. When we evoke the authority of law, of immutable justice, of human or of divine government, we do but take an appeal under other words to our moral nature,
- to that sense of right whose sanction it is that converts the wise into the obligatory way, gives to words new authority, and presses the mind with a feeling of unmeasured dangers and unescapable guilt.
Law and justice would be merely words with no more reverberation in them, no more searching power in awakening and multiplying the echoes, the responses of the spiritual nature, than the catchwords of the market, than price and profits, if it were not for their latent hold on the conscience, compelling us to feel that obedience is not bought or sold — is not measured by the attendant sanctions; that these are rather the signals lifted up, held forth, to indicate the sacred character of the law, of whose presence they warn us, and whose authority they bid us honor. They are regal insignia, not royalty itself.
It is the prior existence of a moral law in our constitution, able to brand disobedience with guilt, to give an undeniable and inalienable character to moral action, which imparts to the precepts of parental, civil, and divine law, that authority whose existence we recognize in the word “justice.” Without this the penalties of law, social and civil, would have only the character of that pain or pleasure which follows the violation or observance of a natural law. The punishments of the state would no more beget the sense of criminality, than do the sufferings of indigestion or the smart of a
wound. They would be looked on as simply artificial guards and guides to those laws of action which the social health requires, as the indications of our nerves of feeling are to those of physical well-being.
So strong is the claim which justice establishes, that some have supposed it an immutable one, not to be remitted without violence to our moral constitution. This is an error in exactly the opposite direction from that which regards it as merely a retaliatory impulse without peculiar authority. If the relation now pointed out between our conscience and justice is correct, if the sense of justice is only the approval which our moral nature gives the particular law, or the given penalty, then there is no such thing as an absolute, immutable claim of justice which must under all circumstances be met. The law, the penalty, are correct, because fitted by a legitimate authority to a desired end ; and it is the nature of the end, and the circumstances under which it is to be secured, which determines the wisdom of the law and of its penalties. A law is a method of meeting a moral, a social, a governmental exigency, and has no other intrinsic fitness or authority than that which springs from the office it discharges. Mercy not only may, but ought to, supersede its penalty, if this can be done in consistency with the interests protected, the objects aimed at.
The claims neither of justice nor mercy are imperative, undeniable. Both admit of consideration, are submitted to the exigencies of the particular case, interpreted by wisdom, and enforced by conscience.
That the sense of justice is only the sense of guilt springing from our moral constitution, brought in to aid the enforcement of law, removing the feeling of cruelty, harshness, hardness, in needful punishment, and giving the judicial process the sanction of profound approval and of great interests, is apparent when we look at the relation between guilt and punishment. There is no parity, no basis of comparison between them. A certain amount of physical or mental suffering, a year's imprisonment, or an hour's expos
ure in the stocks, have no connection with one degree of guilt more than with another. Who can say what measure of crime finds a natural, a precise equivalent in forty stripes ? The two elements of moral quality and suffering are unlike, are incomparable, not open to the judgment of equal or unequal. It is not till we introduce a third element that there is any combination between them, any expression of the one in the other. The moment we consider the end for whiclı punishment is instituted, disciplinary or civil, we have that by which we may grade it to guilt. The fine of one hundred dollars
be a motive sufficient to restrain one class of crimes, while solitary confinement or death itself may be required to check another. The punishment is now regarded as a motive designed to act on the minds of a certain class of persons, and its efficiency or inefficiency admits of an adequate test. The penalty which is sufficient, and no more than sufficient, to accomplish the purpose for which it is instituted, is the just penalty, that is, the penalty whose infliction our moral nature approves, and comes in to soften to our feelings, to grace, to honor with the dread dignity of a moral necessity.
There now springs up the opportunity for a rough, numerical relation. If one year's confinement as the penalty of a given crime is taken as the unit of comparison, then we may affirm that six months or two years belong to other offences, as in our judgment they fall below or transcend in guilt the crime whose punishment has been already fixed. Yet this calculation, so pleasing to our mathematical faculties, which seems about to reduce justice to a standard of weights and measures, suffers speedy arrest even in the coarse exigencies of civil society.
It is found necessary to treat a crime like smuggling with great severity; not because of any peculiar moral obliquity it involves, but because of the unusual facilities afforded for it. Here again, the test of the adequacy of punishment afforded by the end in view comes forward, and severe penalties are threatened as the only sufficient motives to arrest
Vol. XXIV. No. 93.
an action for which there are peculiarly inviting opportunities. The heavy penalty stands as a simple counterpoise in the mind to strong temptation.
If there were any such thing as accurate and absolute justice, a universal and constant claim on the mind for so much suffering as a compensation for so much sin, how must this great, exacting, and profound feeling be tortured by all that is occurring in the discipline and government found in the world ; like penalties bestowed on parties of very diverse character and guilt, on the ground of a formal, external agreement of action; and the same punishment to the physical eye resting with very unequal weight on guilty parties, the callousness of repeated transgression enabling some to bear the infliction with little feeling, and the sensitiveness of comparative innocence leaving others to be touched to the very quick by the inflictions of law, and to fret into their very flesh its tough thongs. For a keen, precise sense of justice to deal thus in human pains, to match guilt and suffering in this gross way, would be as unfitting as to traffic in precious stones on the rough scales of the provision market. Such a sense in a world like this, would be, could be, only a sense of suffering, an eye so laid open to coarse contact that, for the tears with which it was constantly bedewed, and the pain it perpetually felt, it could see to no practical purpose. Such an exact, absolute, and unyielding sense of justice is altogether fanciful, would stamp absurdity and iniquity on God's government, and present a most painful and impossible standard of excellence. Even the doctrine of limited atonement, while retaining a part of such an idea, yields the greater share.
How inadequate also is such a form of justice for the ends of discipline. The sensitiveness of the individual may render punishment unnecessary, or his hardness require it to be greatly increased. It is the character to be acted upon, the diverse effects of diverse treatment on different temperaments, the motives to be overcome, that define the wise, the right way of discipline, of stimulus and restraint, and not the