to take the life of the convicted murderer; and we are disposed to think, that the savage passions and depraved dispositions of man cannot be kept in adequate restraint by the dread of any inferior punishment. But in the long catalogue of offences, descending in the scale from that of murder, there are great varieties of moral guilt, and ample scope for the exercise of a sound discrimination, in which the judicial mind must be guided, not merely by an enlightened regard to the interests of society, but by a recognition of the moral character of actions according to the standard of a higher than human authority. It is for the breach of human law that man punishes. It is in the breach of Divine law that guilt consists. The two therefore must ever coincide in order to justify, on moral principles, the infliction of punishment by human law. Man cannot punish sin as such; but he is not entitled to declare any act a crime which is not in itself a sin, and he is bound to consider those acts as the greatest crimes, which, being injurious to society, involve, at the same time, the greatest amount of moral guilt. In order to illustrate this, we may remark, that such crimes as perjury and subornation of perjury, bigamy, and some of the baser and more aggravated forms of fraud, implying peculiar wickedness and depravity of heart, should, in our view, be always punished with great severity; while poaching, mobbing and rioting, in some instances and when not highly aggravated, and assault during quarrel, and by a person of generally good character, though they are offences deserving punishment, as dangerous to society and culpable in themselves, are yet less revolting to moral feeling, less indicative of moral depravity, and may be repressed by a more lenient sentence. Young men of previous good character have been transported for fourteen years, and even for life, for accession by mere presence in a mob during a period of popular excitement, and the statutory punishment which, till the Act 9 Geo. IV., might have been inflicted on persons guilty of night-poaching, was, in the discretion of the Court, transportation for seven years even for a first offence. While, on the other hand, the crime of wilful and deliberate perjury, committed with every possible circumstance of aggravation, has been sometimes punished by imprisonment; and when punished by transportation, the period has been almost always limited to seven years; and for the crime of bigamy, which we consider a very heinous sin, involving the moral guilt of perjury, the punishment as stated by Mr Alison, is "in modern practice at common law imprisonment only." Other instances might easily be given, but these may suffice to illustrate our position-that the moral guilt of offences, and the degree of moral principle which appears to be left to the offender, should be prominently considered and recognized in the apportioning of punishment to crime. Well-timed

VOL. IV. NO. VIII.

Ꮓ

lenity, when moral principle is not altogether extinguished, has saved many a youth from despair; and not seldom has all hope of the reformation of the offender been excluded by a sentence of such severity, as to degrade him in his own eyes and the eyes of others, and to sever him from the confidence of those who would have aided and encouraged his return to virtue. We are fully alive to the importance of the constitutional principle, that the law knows no respect of persons, and alive also to the danger of exchanging the solid stedfastness of law, for the more attractive, but less substantial, fabric of equitable discretion. We have, accordingly, the strongest objections to a discretionary power of creating offences, or even of inflicting a new and more severe punishment on such an offence as sedition, because of what Baron Hume calls "the exigency of the times." But the apportioning of punishment to crime, according to the moral guilt and social evil of each offence, is within the proper sphere and exercise of judicial discretion, and we think it a great practical recommendation of the criminal law of Scotland, that it is in this respect more elastic and pliant than that of England, and capable of more equitable adaptation to the circumstances of each particular offence, and the character of each several offender. The multiplication of statutory punishments to be applied with unbending uniformity to every case, whatever be its peculiarities, is not without its recommendation, as a safeguard against partiality or caprice; but it precludes the possibility of that delicate adjustment of proportion between punishment and crime which commands the approval, and carries the sympathy of the public, and which frequently tends to promote the reformation of younger and less hardened offenders. The great lines of demarcation are defined in a well understood common law; but within these limits, and under the the constitutional checks of a popularly elected parliament, a free press, and a vigilant and independent bar, the intermediate varieties and distinctions in the guilt and character of offenders are safely and properly left to the discretion of the Court.

ART. III.-Tentamen Anti-Straussianum. The Antiquity of the Gospels asserted on Philological grounds, in Refutation of the Mythic Scheme of Dr. David Frederick Strauss-an Argument. By ORLANDO T. DOBBIN, LL.D., Trinity College, Dublin.

London. 1845.

In due time the English mind, better constituted than the German, and better trained, although less thoroughly furnished, will find, and will apply a remedy for the disorders which have spread as a plague over Continental theology. When that time comes-it is not yet come-a work, necessary and beneficial, will appear to have been achieved by German scholars, to which English scholars were not competent, and which, even had they been competent to it, the religious feeling, prevalent in this country, must have forbidden them to attempt. And then, too, it will become manifest, that the genuine conclusions-the true inference derivable from the labours of the German critics-even the inference or summing up of the argument which ought to be accepted and authenticated, is of that sort which would be drawn only by men such as educated and religious Englishmen are— men serious in their temper-sincere in their convictions-practical in their habits, and abhorrent of misplaced frivolity-of jargon, of fathomless abstractions-and of whatever must shock the feelings of those with whom the love of truth is ever the most powerful of impulses.

Germany, we do not deny, is herself doing something, and something efficient, for the correction or expulsion of the enormities which she has so long cherished in her bosom. Already one species of disbelief has cast out its antecedent; or, at least, the two schemes-incompatible as they are, the one with the other, have served, in some degree, to neutralize each other. The "myth" has supplanted the "anti-supernaturalism" while winning ground for an hypothesis which implies the very contrary of the suppositions that had been assumed by the Rationalists, when they, in their way, were labouring to supplant the French flippant scepticism, and to erect a system of unbelief on more solid foundations. And now, at length, the "myth," as expounded by Strauss, has become, in its turn, the object of scorn to sound-minded men-we mean in Germany-and is yielding to a something better. Still, however, false assumptions, and an ill mood of mind-a universally diffused intellectual sensuousness, not unconnected with gross and revolting national habits, and a very insensitive moral sense

-the German obtuseness-altogether render it in the highest degree improbable, that a truly rational conviction respecting Christianity, should, within any period to which we can clearly look forward, gain footing, or become prevalent in Germany. Besides, in our view at least, that bold reality of character-that forceful following on toward whatever is great, good, and beneficial, which is the distinction of the English race, and which comports so happily with Christian motives-this quality, or this harmony of qualities, demands, as its basis, that which England enjoys, and has long enjoyed, and which Germany has never yet tasted-we mean, civil and political liberty. But before the benign and invigorating influence which this blessing diffuses can take effect, it must not merely have been obtained, but inherited also; it must have been had, and held, and rescued, and transmitted too, through a course of time;-it is an influence that is not matured until it has passed through the loins of four or five generations of men. Before Germany can exchange her fitful pursuit of wild paradoxes for sound principles, she must not only set herself free from the thralls of a degrading despotism, but must have maintained herself in that freedom for 200 years. When at length, Germany, through a course of arduous struggles, yet to be commenced, has vanquished civil and political liberty for herself, she may say, "With a great price obtained I this freedom;" but England, meanwhile, in rejoinder, will be able to reply, "But I was born free;" and the difference is worth centuries of conflict.

Nevertheless and let the balance be fairly righted-great changes must have had place among ourselves, before we shall be in position properly and effectively to establish a Christian belief, as opposed to, and as exclusive of, the Continental sceptical philosophy. Very extensive, unquestionably, have been the inroads of the several forms of imported unbelief during the years of the present century; nor can it be affirmed that this invasion has, as yet, been logically encountered, in any very marked or satisfactory manner. German infidelity is repressed by frowns, as incompatible with our institutions; and it is rejected by a healthy moral instinct, as impious and blasphemous; and it is held in check by native good sense, as a raw absurdity; nevertheless it has not, by any direct and legitimate means, been refuted and brought to nothing.

Far too ample for our present limits is the theme, were inquiry to be made concerning the several causes, operating among ourselves, to prevent or discourage the endeavours of those who might wish to challenge the German infidelity on its own ground. From such an inquiry we turn aside; and shall merely say, that, in thus early bringing under the notice of our readers the Tract

now to be reviewed, we are prompted mainly by the wish to awaken attention to every such endeavour to deal, in a legitimate manner, with the foreign scepticism. At the same time we shall, with the most friendly feeling, do the best we can to indicate to the able author the points at which his argument-to render it unassailable-demands much more elaboration than he has, in this instance, bestowed upon it. Dr. Dobbin announces his argument as discovery;" and he carries it forward exultingly, as if " a triumph" had already been decreed to him by the senate and people of Christendom. More caution, we think, should have been first used; or a tone of more modesty; or—what is better than either alone, namely-both together.

a

We should not hesitate to assign to our author high praise on the score of originality, and novelty too, in the line he has opened; and farther than this, we verily believe his reasoning to be, in the main, sound and conclusive; but at the same time we could, without much risk, predict the sort of treatment which himself and his tract would be likely to meet with at the hands of Dr. Strauss or his adherents. This treatment would not, we think, be logically due to Dr. Dobbin's argument; and yet in measure it might equitably apply to himself. Again we say, we think he deserves high praise, and has done a good service to truth; nevertheless, in using more leisure, he may yet better signalize his learning and acuteness. But Dr. Dobbin shall state his case in his own way. Having referred, p. 29, to those diversities of style which are characteristic of the Evangelists, and the writers of the Apostolic Epistles, he goes on to observe, that there is one special usage, in relation to which these writers are divisible into two great classes

66

"A usage," he says, so peculiar, that the author may justly feel surprise that it has not yet, so far as he can ascertain, been made the subject of lengthened remark from the press. While each sacred penman differs from his next neighbour in almost every conceivable form of style and expression, there is one particular, and perhaps only one, in the language of the Gospels, in which Matthew, Mark, Luke, and John, entirely correspond with each other. In this point of coincidence, the evangelists are as entirely opposed to another class, who, whatever may be their differences with each other, are of one complexion in a diverse usage; these are Paul, James, Peter, Jude, and the author of the Johannine epistles and Apocalypse. So entirely do these respective classes conform to the usage referred to, that if we confine our observation to this single feature, they constitute two volumes, most markedly distinct. Here are the evangelists on the one side, and the epistolographers on the other, no man garbed like his fellow on either side, yet every one so visibly bearing the common badge, as to identify him at once with either party.

"This peculiar and distinctive usage is that of the name by which the Saviour of men is designated in the Gospels and Epistles respectively."