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Chapter III

CIIAPTER III.

EMBARRASSMENTS IN A IIUMAN GOVERNMENT FROM THE WANT OF AN ATONEMENT.

All governments, in the administration of the laws, experience such difficulties as are proposed to be remedied by an atonement. Whether those difficulties would be removed by such a device as that of the atonement is a fair question for consideration; but it will be admitted, on the slightest consideration of the subject, that the difficulties which are proposed to be remedied by an atonement actually exist in all forms of human administration, and that, in spite of any arrangement which can be made by human wisdom, they create constant embarrassment.

It is important, in order to prepare the way for the consideration of the doctrine of the atonement, to show what those difficulties are, and what devices have been resorted to in order to remove them.

I. The embarrassments which are felt may be specified under four heads:—

1. The first arises from the difficulty in respect to the magistrate, the impossibility of his cherishing and carrying out as a magistrate the feelings which he is permitted and required to cherish as a man. As a man, in his private transactions, he can fully carry out the promptings of humanity and the principle of religion in forgiving an offence; as a magistrate, appointed to administer and execute the laws, these feelings are never to be indulged. There springs up a conflict between the promptings of his nature and the demands of duty; and one or the other of these must be suppressed if he extends pardon to the guilty. The difficulty consists in making the private virtues of the man harmonize with the duties of the magistrate, for there are feelings of our nature which require us to show mercy to the guilty, and it is universally regarded as a virtue for one who has been offended or wronged to pardon an offender. This is a virtue, however, which the magistrate strives in vain to transfer as a magistrate to his own bosom. Pardon he could freely extend in private life; but his public position creates difficulties in indulging these feelings which he cannot surmount. All the interests of justice would be sacrificed if as a magistrate he should give indulgence to the feelings which constitute the highest traits of character in private life; if he were to indulge in that free exercise of mercy towards offenders which he inculcates as a duty on his own children, and which he feels bound to manifest as a neighbour or a citizen. On the one hand, to be as unwilling in private life to forgive as he feels bound to be as a magistrate, would be at variance with all the virtues which are inculcated in regard to the treatment of others, and with what, conscious as we are of imperfection, we are often under the necessity of asking from others; and, on the other hand, to transfer these feelings to a bench of justice, or to expect an officer of justice to indulge them freely, would be to render all the processes of trial a farce, and to defeat all the purposes of the arraignment of the violators of the law. No arrangement has been devised by human wisdom by which that which is an eminent virtue in private life can be transferred to a bench of justice, or by which that which is deemed so essential to virtue in private life can be made proper in him who administers and executes the laws. Every man, therefore, who occupies this position must feel—or must act as if he felt—that he is constrained to assume a different character from that which he deems to be virtuous in private life, when he becomes an executor of the laws, or when he occupies a position where the interests of justice are intrusted to him.

2. The second source of embarrassment occurs in cases where it is desirable that an offender should be pardoned, but where it cannot with propriety be done, and the law is suffered to take its course. In such a case an injury is done to humanity itself, and some of its best dictates are disregarded. There are conflicting feelings and interests, and there is no way by which they can be reconciled. The convictions of the necessity of justice in the execution of the laws, and the strong promptings of humanity in the bosom of the magistrate and in the feelings of the community, come into collision, and there is no method in which both can be indulged, or in which they can be reconciled. The well-known case of Dr. Dodd, so frequently referred to by writers on this subject, will illustrate this point. He was a clergyman. His character and standing before the act of forgery charged on him had been unimpeached. In an evil hour he committed an act of forgery, and was sentenced to death. The case at once excited strong sympathy throughout the realm. The offence was undeniable, and he himself did not attempt to deny it. He did not seek, by any dishonest or dishonourable act, to evade the penalty of the law, nor did he even avail himself of an opportunity of escape which had been purposely left open to him. The paper, forged with the name of the Earl of Chesterfield, was purposely left with him when alone, with the expectation and the hope that he would destroy it and thus remove all the means of convicting him. But, by some strange infatuation, or by design, he omitted to do it, and the law pronounced on him the sentence of death. His fair character hitherto, his profession, and the fact that this was his first offence, excited the strong sympathies of the nation. A petition for his pardon, drawn up by Dr. Johnson, and with his name at the head, received at once no less than thirty thousand signatures; and all the warm feelings of the sovereign himself prompted him to clemency. The benevolent feelings of a large part of the British nation would have been gratified with his pardon. But, on the other hand, there was the explicit judgment of the law. There was the aggravated character of the offence,—an offence tending to destroy all confidence in a commercial community. The law regarded the crime as so heinous; so important was it to prevent the commission of the crime in a commercial community; so necessary was it to secure confidence in the transactions between man and man, that it has been said that up to that time in England no one guilty of that crime had been pardoned. Perhaps, too, his profession operated against him, and it was deemed desirable that by a striking example it should be seen that in no circumstances whatever was indulgence to be given to that offence. The law was suffered, therefore, to take its course. The offender died, and the world approved the stern decision of the sovereign.

But the embarrassment felt in this case for the want of some device like an atonement is apparent. There was a manifest want of some arrangement by which the benevolent feelings of the nation and of the sovereign could be gratified, and by which at the same time the interests of justice could be secured. On the one hand, there were thousands of pained hearts when the guilty man died; and on the other, there would have been thousands of painful apprehensions about the consequences if he had been suffered to live. An atonement, or some arrangement that would have secured, at the same time, the gratification of the benevolent feelings of the community, the life of the offender, and the interests of justice, would have saved the whole difficulty.

In every such case there is a source of embarrassment in the administration of law which it has never been in the power of human legislation to remove. There are desires of our nature which are not gratified; and in the rigid execution of law, however a magistrate may comply with the promptings of nature in one respect,—that which requires him to administer justice,—there are other promptings of his nature which are not complied with,—those which impel him to mercy. While obeying the demands of his nature in one respect, he is doing violence to it in another; nor has it ever been possible to make such an arrangement that all the promptings of his nature shall be in harmony.

3. A third source of embarrassment in the administration of justice from the .want of some arrangement like an atonement pertains to the reformation or the future conduct of an offender. Even supposing that the interests of justice were fully consulted, and that at the same time all the promptings of compassion in our nature were complied with, still, there is a material point for which no arrangement is made, in regard to the future conduct of the offender. If his punishment had secured his reformation, and if there were absolute certainty in regard to his future good conduct, the exercise of mercy would be attended with much fewer embarrassments than it is now. The whole aspect of the case would be changed, and an approximation would be made at least towards a removal of the difficulties already suggested. It might be supposed that the ends of justice had been so far accomplished in securing his reformation that the exercise of the pardoning power would not be perilous to the community. A few remarks will make this point clear.

(a.) There is great injustice to a community if an offender is discharged with no evidence of repentance and reformation, and no security that he will be subsequently obedient to the laws. This involves a positive wrong to a community, because it sets aside all the arrangements which have been made by that community to detect and punish the guilty and to secure itself from the commission of crime, and because it jeopards the safety of the community by turning upon it a practised offender with no security that he will not repeat his offences. The wrong done to the community, therefore, is to be measured by all the arrangements which have been made to detect and punish offenders, and by all the injury which would result if the offence should be repeated. For the arrangements made in any community for the detection, arrest, trial, conviction, and punishment of offenders are among the most valuable of all the arrangements of governments; they call into requisition more than almost any other arrangement the wisdom of legislators; they are supposed to protect more rights and to furnish more security for the peace of a community than any other arrangements; and they constitute, more than any thing else, the security on which the community relies for the preservation of property, reputation, life, and peace. The wrong also is to be measured by all that is thus done to endanger the future welfare of the community. Every offender discharged from prison without evidence of reformation does much to render property, life, and reputation insecure, and is so far an act of injustice to the community. It is practically an act of wrong to the community as direct as it would be to establish a school for the purpose of training burglars and counterfeiters, instructing them in the arts of fraud and villainy, and sending them out thus trained to prey upon the community. If there could be some arrangement by which the future good conduct of those who are pardoned could be secured, the wrong done to the community would be indeed much less flagrant; but there could be no higher act of injustice to all the virtuous and peaceable citizens of a commonwealth, and no act that would more certainly endanger all the rights that society seeks to secure, than at once to discharge all the inmates of the penitentiaries of a land with no security for their future good behaviour.

(b.) Yet it has never been possible by prison-discipline so to secure the reformation of convicts as to furnish a guarantee for their future good conduct. At this point all the arrangements made for reaching the hearts of convicts, and all the efforts of the friends of prison-discipline for securing the reformation of convicts, fail; and, unless some plan securing such an effect as is contemplated by an atonement in the reformation of the guilty can be devised, must forever fail. The reasons for this opinion are the following:—

1. No certain reliance can be placed on any professed reformation of a convict; and this would be especially true if his discharge were made in any way dependent on such a professed reformation. No government has ever supposed that it would be a safe principle to adopt that an offender should always be pardoned on evidence of his repentance and reformation. No evidence could be furnished of such a reformation that would be a safe ground of reliance, for the temptation to hypocrisy and insincerity in such a prospect would be so great that no reliance could be placed on any protestations of a purpose of future amendment. Even the most hardened offenders would, in such a case, soon learn the tears and the language of penitence; and few would they be who would remain in prison if the counterfeited expressions of sorrow for sin and the counterfeited pledges of future amendment would secure a discharge. Even with all the precautions and safeguards introduced into prisons on this point; even where there is no promise, or pledge, or even secret hope of pardon from reformation, it is sad to reflect how few pretended reformations in prison can be relied on; how few are, in fact, sincere and permanent.*

2. There is no certainty that punishment will so secure the certain reformation of the offender as to make it safe to pardon him. The design of punishment will be a subject for future consideration in this essay, as well also the usual effect of punishment considered as a means of securing reformation or guarding against a repetition of an offence. All that it is necessary now to observe is, that such an effect cannot be regarded as so certain as to be a basis of calculation in reference to the future conduct of an offender, or a basis of action in reference to his treatment at present. It cannot be assumed in the administration of law that punishment will always be so efficacious in securing reformation that this may be proceeded upon as certain, or that on the basis of such an expectation it will be proper to make an arrangement by which convicts may be discharged. In all the forms of punishment which have been devised,—whether by fines, imprisonment, scourging, torture, attainder, banishment, or branding,—no method has been found that has been so certainly efficacious in securing reformation that it could be assumed that this would always be the result, or that the professions of reformation under the infliction of such penalties could be so relied on that they might be regarded as a safe basis of action in the treatment of the guilty. Repentance and reformation, in fact, occur very seldom as the result of punishment. Even the profession of repentance and reformation is a rare thing. We shall see in our subsequent inquiries that punishment as such has no tendency to produce genuine reformation, but that whenever a real reformation occurs in connection with an infliction of the penalty of the law, it is by some foreign influence, by something which has been introduced apart from the punishment, and which could never have been secured by the mere infliction of the penalty of the law.

* The following extract from the Journal of Prison-Discipline and Philanthropy, for January, 1857, referring to an actual experiment of this kind in one of our States, may be adduced to illustrate the effect which would be produced in this respect by the hope of obtaining pardon on the manifestation of repentance and reformation:—

"There are certain periods at which this pardoning tribunal holds its session, and these are known to convicts. The officers of the State Penitentiary of this same State assured us, not long since, that if one should visit the prison shortly before the assembling of this court, he might think the convicts were suddenly metamorphosed into the most devout religionists. The Bible is in sudden demand. The most demure expressions of countenance are assumed, and the lamblike deportment of the prisoners would indicate a complete reformation. But let the same visitor be present the day after the court of pardons adjourns, and he would think the convicts had suddenly become demons incarnate. Some are favoured in the dispensation of mercy; but others, vexed, chagrined, and disappointed, seem bent upon avenging what they call their wrongs; and it is a task of many days for an energetic warden to reduce them to.tolerable subordination."

3. Such a power cannot be introduced into au act of pardon as shall secure the future good conduct of the offender. If this could be done, it is obvious that it would be safe then to pardon the guilty,—at least, so far as their future good conduct is concerned. But this cannot be done. There is no certainty or probability that an act of pardon will so operate on the mind of one who is pardoned as to make his reformation certain; there is no tendency in such an act to make it certain. There are no principles in human nature on which reliance can be placed in securing such a result. We cannot so confide in the gratitude of men, or in their generous impulses, as to feel any assurance that by doing them an act of kindness they will cease to do wrong. However flagrant may have been a crime, however clear the evidence that it was committed, and however it might be supposed that an act of clemency in such a case would appeal to all that is generous and noble in man, yet facts abundantly show that no such act of clemency will so appeal to his sense of gratitude as to secure the future good conduct of the guilty. Nor can there be introduced into the instrument of pardon any such influence as to constitute a ground of security for the future good conduct of an offender. The presumption is rather that one who had been punished, in whatever way he may be discharged from punishment, whether by having borne the prescribed penalty of the law, or by an act of clemency, will feel that he has been wronged by the punishment, and will seek an opportunity of avenging himself for the wrong. Facts, in the case of those who are convicted of crime and who are either punished or pardoned, abundantly sustain this presumption.

4. A fourth source of embarrassment in the administration of justice, which no human arrangement has been sufficient to overcome, is, that it is impossible to secure the exercise of both justice and mercy. The one, so far as it is exercised, sets aside the other. It is possible to be severely and sternly just, and it is possible to be tender, compassionate, and merciful; but it has not been found possible to blend the two. We have seen in the previous remarks that in our nature there is a demand for both, and that cases constantly occur where it is desirable that there should be an exercise of both; that is, cases of acknowledged crime where it is desirable that the offence should be punished, and yet cases so peculiar in their nature that it is desirable that there should be an exercise of clemency; cases where all the interests of justice demand that there should be punishment, and yet where all the benevolent feelings of our nature would be gratified by an act of pardon. One of these only can be gratified by the course which may be pursued in the administration of law; both cannot be. They conflict with each other. The one practically and in effect sets aside the other. As a government leans to the one or the other, it is stern, severe, and harsh, or weak, inefficient, and ineffective. Some of the noblest feelings of our nature are overridden and crushed out by the rigid execution of law; some of the essential claims of justice are set aside by every interposition of mercy. There have been no arrangements in society for blending the two. There are no such arrangements in the ordinary courts of justice; there is no special tribunal where it is supposed that the two can be blended. There are arrangements in abundance for the administration of justice, and there are arrangements for the exercise of mercy, but there are none for the blending of the two. So far also as the character of one who is intrusted with administering the laws is concerned, in proportion as he is inclined to the one it is always at the expense of the other. He is merciful or just, not merciful and just. The one attribute constantly neutralizes the other; and, though there are .cases in abundance where these attributes are manifested separately, there are none where they are perfectly combined. Though there are humane judges, yet the mere administration of law is always stern and rigid. If mercy is to be shown it is not by the judge as such; it is reserved for some other breast than his, or for his own breast when acting in some other capacity. "The constitution," says Lord Mansfield, when delivering the opinion of the court of King's Bench on the outlawry of Mr. Wilkes, "does not allow reasons of state to influence our judgments. God forbid that it should! The constitution trusts the king with reasons of state and policy; he may stop prosecutions; he may pardon oft'ences; it is his to judge whether the law or the criminal should yield. We have no election. None of us encouraged or approved the commission of either of the crimes of which the defendant is convicted; none of us had any hand in his being prosecuted. We cannot pardon. We are to say what we take the law to be: if we do not speak our real opinions, we prevaricate with God and our own con sciences."

The departments of justice and mercy have in all constitutional and wise governments been kept distinct; and, however the hearts of judges may he nclined to mercy, and however cordial they may be in commending the guilty to mercy, yet judgment and mercy are so distinct in their character, and are to be dispensed on so different principles, that the law presumes that they cannot both be found united in the same bosom, and that they cannot be safely intrusted to the same individual. As the law has made no arrangement for blending the exercise of the two, so it has never presumed that the same person is qualified to administer both.

Such are some of the embarrassments which occur in a human administration from the want of an atonement. It may be proper, then,—

II. In the second place, in illustration of this point, to refer to some cases which have occurred where this difficulty has been felt, and some of the devices which have been resorted to to meet it.

A case occurred in the life of the prophet Daniel, which will show what has not unfrequently occurred under governments where the law is stern and inflexible. The case was this: Darius, the king, had been instigated by crafty counsellors to promulgate a law that whoever should ask any petition of any god or man for thirty days, except of himself, should be cast into a den of lions. (Daniel vi. 7.) Daniel, as was anticipated by those who had proposed the law, (for it had been proposed for the very purpose of securing his fall from power,) was the first offender. The king now saw that by the law so craftily obtained he had involved the first officer of the realm and a man of unsullied character in ruin, unless some way could be devised by which the consequences of the statute could be averted. Thus it is said (verse 14) that " the king was sore displeased with himself, and set his heart on Daniel to deliver him; and he laboured till the going down of the sun to deliver him." His feelings of friendship for Daniel prompted him to this; his convictions of what was right urged him to it; the sense of the wrong that he had done in yielding to the enactment of a law manifestly designed to i*uin an innocent man pressed it upon him. But there were insuperable difficulties in the case. There was the stern and absolute law which he had himself enacted. There was the settled maxim in regard to the laws of the realm that they should not be altered, (verse 8 ;) the fixed principle that, having been once enacted, they should be allowed to take their course, no matter what consequences might follow. There was the undoubted fact that Daniel had violated the law, —a fact which Daniel himself would not deny, and which could not be called in question. There was the rank of the offender, and the apprehension of the consequences on more humble classes if one so exalted should be pardoned after an open and palpable violation of the law. There was the effect which would follow in regard to the character of the monarch himself, if he should thus practically confess that he had been inveigled into the enactme. t of a law designed for a crafty purpose, whose consequences and bearing he did not himself foresee. In view of these considerations, all that could be done was to let the law take its course. The most illustrious, the most useful, and the most upright man in the kingdom was thus consigned to a most fearful doom; and nothing but the protecting care of God saved him when human justice was denied him. Now, on the supposition in this case that the law had been as just as it was inexorable, what was needed, and what would have .met the whole difficulty, was some device like an atonement,—some arrangement by which the majesty of the law could be asserted and its proper influence secured, while at the same time the desire of the monarch's heart to release the offender could be gratified.

* Lives of the Chief-Justices of England, by Lord Campbell, vol. ii. p. 354.

This case may illustrate what substantially occurs always iu the administration of law. It is true that all law has a penalty; for if it had not it would be a bugbear. It is true that, so far as the administration of law is concerned, all law is inexorable; for, though a legislature may change or repeal a law, a court is appointed only to administer it, not to set it aside, and, so far as a court is concerned, all laws are as inexorable as " the laws of the Medes and Persians." It is true that in every case where an act of pardon is contemplated it is implied that there has been an undoubted violation of law; for if this is not so the discharge of the man is not an act of pardon, but of justice. And it is true that though all offenders have not the rank, the character, or the moral worth of Daniel, yet that the mere act of violating a law gives a man a prominence which he would not otherwise have had; exalts him into a degree of conspicuity to which nothing else might elevate him; and gives him a claim to notice which perhaps nothing else could. And it is true, also, that in numerous cases there are strong appeals made to the humanity, the compassion, the kindness, of those intrusted with the pardoning power; that from the age, the former character, the standing, the ability to be useful, of those who are convicted of crime, the operation of the law, though just, seems harsh and severe, and a strong appeal is made to mercy. Such instances strongly remind us of the case of Darius, who "set his heart on Daniel to deliver him, and laboured till the going down of the sun to deliver him."

The case of Dr. Dodd, before described,* may be again referred to, as another illustration of the embarrassments experienced in the administration of a human government for the want of an atonement. If in that case, as in the case of Daniel, there could have been some device by which, on the one hand, the majesty of the law could have been maintained and the claims of justice asserted, and by which, on the other, the benevolent feelings of the sovereign and of the community could have been gratified, it is easy to see how the evils would have been avoided which were inevitable without it.

Whatever may be thought of the arrangement proposed in the gospel to meet the case of sinful men, it cannot be denied that such an arrangement is desirable, nor that embarrassments are constantly occurring in human governments for the want of it which there has been hitherto no way to overcome. The fact that there is no atonement under a human administration does not occur because there are no cases where it would be desirable, or because no embarrassments arise from the want of it, but because the legislator can make no such provision. It is above him. Even if the principle were admitted that the sufferings of the innocent might be substituted in place of the penalty with which the law threatens the guilty, there is no one whose sufferings he can substitute in place of the guilty, and the whole arrangement is too elevated and vast for him.

*Pp. 51, 52, 53.

To meet and remove these difficulties, as far as it can be done, governments are often constrained to resort to clumsy, ineffectual, and even cruel, devices. Of these the two principal have been substitution and retaliation.

(1.) Substitution.—This has not often indeed been resorted to, for it has not been easy to find a substitute, nor has it been easy to perceive how substituted suffering could satisfy the demands of the law, or secure the ends of the penalty threatened to the offender himself. We shall see, indeed, in a subsequent part of this Essay, that the principle involved in such a substitution is not unfrequently developed in. the actual course of events under the divine administration; but it has not been practicable for a human government to adopt the principle and to incorporate it into the regular administration of the laws. A single instance may illustrate the difficulty of doing this, and may show how clumsy, ineffectual, and impracticable the attempt is when men resort to substituted sufferings to screen the guilty from punishment.

The King of the Locrians made a law that the adulterer should be punished with the loss of both his eyes. His son was the first offender; and the father, to save his son from the infliction of the penalty and yet to secure the honour of the law, determined that he himself would lose one eye and that his son should lose another. But, whatever might be the effect of a single instance of this kind on the offender or on the community, it was still far from meeting the difficulties which occur in the administration of justice, and from removing the embarrassments which, as we have seen, press on all governments. For this was not what the law required; it was not what the case demanded. The penalty was simply divided, and yet was such that it was not in fact inflicted at all; for the essential idea in the penalty was that of a total loss of sight,—which occurred to neither the father nor the son. If the father had submitted to the loss of both his eyes, the case would have been more nearly met. But eveu then it would have lacked an essential thing in all the proper demands for an atonement. It could not be repeated, aud the influence of it could be properly applicable only to this one case. Besides, it had necessarily no efficacy in bringing his son to repentance and securing his future good conduct. The threatening of the loss of the other eye, and of total blindness, might indeed have deterred him; but that would be a new penalty, to operate as any other penalty would, deriving no power from the substituted sufferings of the father in this case. Moreover, even if it had been effectual in this case, it could not be expected to operate in other instances to deter from crime, for, in the very nature of the case, it was limited in its intention and influence to this single instance, and any merit which there might be in it could not be transferred to others. Further, the crime was not atoned for. Just as much suffering was supposed to be endured as would have been if the whole penalty had been inflicted on the son; and the effect was simply that a part was transferred from the guilty to the innocent. So far as the suffering threatened by the law was concerned, it was all inflicted, and in that respect the penalty was completely exhausted. There was no gain of happiness, there was no diminution of suffering, there was no advantage on the whole; for if the exact amount of suffering is to be endured, it is obvious that there is no gain secured by the arrangement, and that it is better that it should be endured by the guilty than by the innocent. Besides, as already remarked, the arrangement secured necessarily no change in the offender. It might be hoped, indeed, that a son would be affected by seeing a father voluntarily endure such a calamity to save him from the full penalty of the law; but it is obvious that there could be no security that it would have this effect on him, and still less that it would have such an effect on others. Indeed, it would not be probable that in regard to the reformation of others it would produce any effect whatever. It might deter others from crime by the apprehension that, if the sovereign was so determined to execute the law as to divide its penalty between his own son and himself, it might be presumed that in all other cases it would be rigidly enforced; but neither in the case of his son, nor of any other offenders, would there be the slightest security that it would tend to bring them to repentance and to a virtuous life.

(2.) Another device which is resorted to to remove the difficulties which occur in the administration of justice, is that of retaliation. A tragedy of this kind was on the point of being enacted in the American Revolution, which would have made the hearts of hundreds bleed on both sides of the Atlantic. A Captain Huddy—an American officer who commanded a small body of troops in Monmouth county, New Jersey—was taken by the British, and shortly afterwards was hanged on the heights near Middletown. It was a case so aggravated, his character was 60 fair, and it was regarded as so important that a repetition of such offences should be prevented, that retaliation was resolved on, and it was determined that if the leader of the party was not given up, an officer of the same rank should be selected from the British prisoners in the hands of the Americans, and executed. A large number of British officers were then in Lancaster, Pennsylvania, as prisoners. The selection was to be made by lot. It fell on Captain Asgill, an interesting young man of nineteen years of age; and he was conducted towards the army to expiate the murder of the American officer by his death. He had a mother across the ocean. She was already borne down with the weight of family afflictions; and now, far from home, her son, having attained an honourable rank in the army, and in the dawn of life, was destined to death,—a species of military sacrifice to atone for the crimes of his country. Circumstances, indeed, not necessary here to be stated, prevented the execution of the purpose, and he was discharged; but the principle was fully admitted both by Washington and by Congress, and every arrangement had been made to execute the purpose.* Calmly indeed a brave young man might die even under such circumstances; but it was not like dying on the field with the flag of the enemy folded under his head for a pillow, as Wolfe did, or even dying in defeat voluntarily shedding his blood, like Montgomery on the same plains of Abraham.

But it is not with the spirit with which a brave young man might meet death in such circumstances that we are concerned; it is with the transaction itself considered as a human device to avenge a wrong, to secure the ends of justice, to repair an injury, and to atone for an offence. And here we may notice the following things as illustrating this and all similar methods of retaliation:—

(a.) It was a designed substitution,—a substitution of an innocent man in the place of the guilty leader of the band which had perpetrated the crime. It was designed to be in the place of his death, and was intended somehow to answer the purpose which his death would have answered. The execution of the leader of the party would have been regarded, so far as the law is concerned, as an expiation for the offence, or as a satisfaction for the crime. If he had been delivered up and put to death, the laws of war would have had no other claim, nor, according to the usages of war, could there have been any other claim, on the enemy. Not even the friends of the murdered man themselves could have demanded any other reparation for the wrong that had been done to them, and the proposed arrangement—by the execution of an innocent man—was intended to accomplish, as far as it could be done, the ends that would have been secured by the death of the murderer himself. It was, therefore, one of the few cases attempted in human laws of expiating crime by substituted sufferings.

* Irving's Life of Washington, vol. iv. pp. 394-397.

(b.) It was to the young officer himself a palpable wrong, a wrong which no consideration could justify. He had, so far as this was concerned, committed no crime. He had violated no law. He had in no sense been guilty of the murder. Nor can it be inferred that he had bound himself by any contract, express or implied, to serve his country in this manner. He may, indeed, be presumed to have offered himself to die for his country, if such should be his lot, on the field of battle, or even in any hard service that might be required. His talents, his skill, his vigour, his time, his valour, all were, in the proper way, to be at the service of his country. But it cannot be supposed that by entering the army he had ever brought himself under an obligation to undergo a shameful death; to have his name connected with the infamy of the gallows, and to be hurried by a cold and cruel act to the grave, in the morning of life, in order to expiate the crime of another. Nothing could make this an act of justice to him, or ever prevent its being, in all its aspects and bearings, a palpable wrong. Whatever benefit his country might derive to itself by suffering this; in whatever way it might be made to avenge a wrong or make satisfaction for crime, it could not but be to him an act of gross and cruel injustice.

(e.) Such an act of retaliation makes even war itself more barbarous and savage. Besides being a wrong to him who is selected to suffer, for which nothing could compensate, it violates all the laws even of 'honour,' deemed so essential in the prosecution of war. It crushes at once all the gentle and noble feelings of our nature, and inflicts pain and wrong on those who ought to be protected. It was not merely the young man who was selected to be the victim who would suffer: the infliction would strike deeper, and would reach those who were in no manner implicated in the war, who were in no sense under the laws of war, and who could by no construction be under obligations to suffer the penalty due to crime. After all, the keenest suffering in the case might not be that endured by the young officer himself, for when he entered the army he perhaps expected to die in the service of his country: it would be the widowed mother in a distant land; the affectionate and tender sister; the maiden affianced to him and who waited for his return with triumph. The chief sorrow from the infliction would be found in the home made desolate; the painful disappointment there; the embittered remembrance in future years of such a day of calamity. Could all terminate on him, or could eveu his death be remembered in future years as it might have been if he had fallen in battle, the case would be different; but when would the sorrow cease, and what mitigation could there ever be of it, if he was dragged, as if he had been a guilty man, to be murdered in cold blood to expiate a crime with which he had no connection, and for whose commission he could in no sense be responsible?

(d.) It may be added, that if the matter had been of such a nature that he could have submitted to death voluntarily, and that his sacrifice could have been regarded as an act of generous self-devotion to save another from a death as cruel, or more cruel, or to save a friend or a foe from danger,—as when one perils his life in endeavouring to deliver another from a watery grave or from flame, or throws himself into pestilential abodes to minister to the sick and dying, and himself falls a victim,—then the case would have been different. The aspect of cruelty, injustice, and severity would then have been wholly removed. It would have assumed the character of all that is noble, elevated, and pure. In such generous self-sacrifice there is every thing to mitigate the sorrows of bereavement; and even the distant widowed mother, the affectionate sister, and the affianced bride would find consolation in such an act. The idea of voluntariness would change at once the whole nature of the transaction, and impart consolation in the remembrance of it in the scenes of deepest sorrow. In the one case the act would convey the idea of every thing generous and noble; in the other, it suggests the idea of all that is cold, repellant, harsh, severe. While the act under consideration would fail, therefore, in atoning for the crime or expiating the offence, it would violate every generous feeling of our nature, and serve to perpetuate, extend, and magnify all that is cruel and savage in the nature of man.

The difficulties which have been now suggested press upon every government in the administration of justice; nor has it been possible ever to remove them. The two objects of mercy and justice have never been blended, and the devices which have been resorted to to secure the two have always been clumsy and ineffectual, and usually severe and unjust. One may easily be secured,—either justice or mercy; but frequently one is secured at the expense of the other. Justice may be secured, but mercy cannot be extended at the same time to the guilty. It is mere justice—stern, hard, inexorable justice— when a murderer dies on the gallows; it is cold, ironhearted, and iron-handed right when a man is incarcerated for life iu a dungeon; it becomes a violation of all the tender sensibilities of our nature, a thing which chills and stuns us, when such a man as the youthful Asgill is selected by lot, and when arrangements are coolly made for his death. Possibly, in such a case, one accustomed to the stern laws of war, or schooled in the mere rules of justice, may discipline the understanding so that it does not revolt at it; but he never so disciplines the heart. That maintains an unwavering aversion to all such transactions; that never varies in its emotions when such transactions are contemplated. Its remonstrances may be, indeed, silenced. There may be no clamour, and no expressed disapproval. But it is acquiescence in stern necessity in a case where the heart feels that a wrong is done to all its own sympathies, and that a demand of its nature has been disregarded, for there is in such cases no such clemency, such kindness, such compassion, as the heart demands. In the mere administration of justice, judges are compelled to part with the kindlier feelings of their nature, and to lay aside their sympathies as fathers, as brothers, as men; jurors are compelled to forget that they are endowed with sympathy and that it is part of their nature to forgive offenders; executioners are compelled to forget that he is a man for whom they are rearing the gallows, and to suppress all the tender emotions of the soul when they send a fellow-being to the bar of God. But, on the other hand, it is true, mercy might be shown to the guilty. All prisons might be thrown open. All convicts might be pardoned. The murderer, and the pirate, and the traitor might be discharged. But then there are principles of our nature which are violated which are as strong and as proper as the claims of mercy and compassion. There are wrongs committed as real, and violations of our nature as certain, as in the sternest and coldest infliction of the mere penalty of the law. In doing this, all the demands of justice would be disregarded, and an egregious wrong would be done to a community. It would be of no use that a vigilant police had ferreted out those who had committed crime; that the process of arraignment and trial had been gone through with; that justice had poised her scales with sure hand and sentenced the guilty man to death. All the securities supposed to be important to the community in the trial by jury, and in the processes of trial, would be of no value; for they would be all at once set aside. In such a state of things, also, the best interests of the community would be disregarded. Pardoned, but urfreformed, the murderer, the burglar, the pirate, the highwayman, the midnight assassin, would be let loose upon the community; and who could lie calmly on his pillow? Every neighbourhood would be filled with discharged convicts unreformed; and where would property and life be safe? Every sea would swarm with pirates; and what security could there be for the vast treasures embarked in the pursuits of commerce? What mother could sleep calmly at night, feeling that her 'sailor-boy' was safe on the ocean?

But if an atonement could be made; if there could be such an arrangement that all these varied interests could be secured, what a change would be produced in the administration of the laws! If it were possible to institute an arrangement which would secure a proper expression of the majesty and honour of the law and the interests of justice, and, at the same time, make it proper to indulge the benevolent feelings of the heart; that would send forth all who are pardoned, however guilty they may have been, thoroughly reformed, prepared to take their places in the community as industrious and honest men, securing their good behaviour in all time to come, it is obvious that an object would be accomplished which never has been secured in the administration of justice. It would be an object for which the world has sighed, and which men have endeavoured to secure by the harsh and clumsy devices occasionally resorted to in the vain endeavour to blend the administration of justice and the dispensation of mercy. Whether that object has been secured in the atonement made by the Redeemer, is the most momentous question that can come before the mind of man.