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JUSTICE. 
 
 A DISCOURSE TO THE STUDENTS OF THE 
 
 LAW DEPARTMENT 
 
 OF THE 
 
 INDIANA UNIVEBSITY, 
 
 DELIVERED AT THEIR ^REQUEST, ON 
 
 Conferring upon ifye >rabttating OTla0s tljeir ^Diplomas, 
 
 FEBRUARY 26, 1850. 
 
 BY ANDREW WYLIE, Z>. D 
 
 PRESIDENT OF THE UNIVERSITY. 
 
 BLOOMINGTON: 
 
 PRINTED AT THE INDIANA TRIBUNE OFFICE. 
 1850. 
 
JUSTICE. 
 
 A DISCOURSE TO THE STUDENTS OF THE 
 
 LAW DEPARTMENT 
 
 OF THE 
 
 INDIANA UNIVERSITY, 
 
 DELIVERED AT THEIR REQUEST, ON 
 
 C0nfming njwn tf)e (Srabttaiing Class tfyeir Diplomas, 
 FEBRUARY 26, 1850. 
 
 BIT ANDREW WYLIE, B. D. 
 
 PRESIDENT OF THE^ UNIVERSITY. 
 
 BLOOMINGTON: 
 
 PRINTED AT THE INDIANA TRIBUNE OFFICE. 
 1850. 
 
c 
 
 UNIVERSITY OF INDIANA, February 27th, 1850. 
 DEAR SIR: On behalf of our fellow students we would respectfully 
 solicit, for publication, a copy of your, Discourse delivered before the Law 
 Department, on the 26th instant, and would tender an acknowledgment 
 of the obligation which you'confefred upon us in accepting the invitation 
 to address us on the occasion of our Commencement. 
 With feelings of the highest regard, 
 
 Your obedient servants, 
 
 W. S. HILLYER, ) 
 S. K.' WOLFE, > Committe. 
 
 ROBT. H. MILROY,! 
 Rev. ANDREW WYLIE, D. D. 
 
 UNIVERSITY opf INDIANA, February 27th, 1850. 
 
 GENTLEMEN: The kind feelings, on your part, which have construed 
 my consent to deliver to you a Discourse at the close of the past term into 
 an "obligation conferred" upon you, are appreciated and reciprocated on 
 mine. The copy which you ask is at your disposal. Please accept for 
 yourselves, and for the other students whom you represent, assurances of 
 that high regard, with which I am, gentlemen, 
 
 Your most obedient humble servant, 
 
 ANDREW WYLIE. 
 Messrs. W. S. HILLYER, } 
 
 S. K. WOLFE, > Committee. 
 ROBT. H. MILROY,) 
 
DISCOURSE. 
 
 YOUNG GENTLEMEN : 
 
 The University is about to reward your diligence in the study 
 of law, by conferring upon each of you a Diploma, certifying 
 your attainments in legal science to be such as to qualify you 
 for the practice of the law, the profession of which you have 
 in view. 
 
 I could think of no subject more proper for the occasion than 
 that of justice; for this is the end at which the law aims, and for 
 the attainment of which courts of law and the legal profession 
 have been provided as instruments. But I do not propose, in 
 the following remarks, to discuss the subject of justice, but only 
 to explain it. And, in attempting to do this, I do not expect to 
 offer any thing which will be new to you, any thing which you 
 have not already heard from the lips of the honorable Professors 
 on whose instructions it has been your privilege to attend. But 
 as it is not their province to treat of justice directly, the refer- 
 ences to it which they may have made in the course of their 
 lectures, it might not be useless to you, not only as lawyers, but 
 as men and citizens, to have placed under your eye in some- 
 thing like a tabellary view, in language less technical than we 
 naturally look for when subjects are discussed at large and 
 drawn out into a system. To furnish such a representation of 
 the body of justice itself as the references of law, like so many 
 lines, verge towards and terminate in, is what I have had prin- 
 cipally in view in the following remarks. Let it, however-, be 
 here understood, once for all, that justice reigns in a much wider 
 and higher sphere than the authority pf human laws. The 
 exactness of her precepts, human laws may approximate, but 
 they can never reach, 
 
 M189474 
 
And if. in what I am about to say in reference to this matter, 
 an idea should occur, here or there, which belongs properly to 
 the province of law, and which the honorable Professors of the 
 law have already communicated to you in an abler and better 
 manner, they will not, I trust, charge me with having invaded 
 their province with any felonious intent, but will have the good- 
 ness to consider that ideas, like sheep, have naturally a strong 
 propensity to ramble, and that, as the field of morals which it 
 is my official duty to cultivate, lies contiguous to that on which 
 their labors are bestowed, it ought not to seem strange if, on 
 this occasion, some ideas from their side of the dividing line 
 should be found on my side of it. I find, in the Revised Statutes, 
 chap. 53, sec. 22, it has been thus enacted that, "every person 
 who shall alter the mark or brand of horse, mare or gelding, 
 mule, ass, sheep, goat, neat cattle, or hog, of another, or mark 
 and brand the same with intent to steal such horse, mare, geld- 
 ing, mule, ass, sheep, goat, neat cattle, or hog, shall, if the value 
 of the animal or animals so marked be five Collars or upwards, 
 be subjected to the punishment inflicted on those guilty of GRAND 
 larceny." As this discourse proceeds, its author is somewhat 
 uneasy for fear of the penalty attached to this statute. No 
 animal exhibited in it, can, he thinks, be valued at less than five 
 dollars. His only hope of escape is founded on the plea, that 
 the mark or brand has in no case been altered, but only a label 
 attached shewing of what sort the creature is, So that if the 
 label should not please, it may be detached, and let the thing run. 
 
 What, then, is justice? The word has several meanings; and 
 what is true of it in one of these meanings may not be true of 
 it in another. As, if I were speaking of a file^ a carpenter 
 would think of the instrument which he uses in sharpening his 
 saw; the military captain would think of a number of soldiers 
 stationed in a line; while to the lawyer the word would suggest 
 the idea of some papers placed away in an orderly manner; and 
 to the judge, that of a series of judicial decisions made according 
 to some one principle. Every one sees that what would be true 
 of a file in any one of these four senses, could hardly fail to be 
 false in all the remaining three. Not one in ten of those who 
 
pronounce the word door, several times almost every day of 
 their lives, is aware that, besides its numerous metaphorical 
 meanings, it signifies literally two things, which resemble each 
 other in no respect but one. The opening in the wall and the 
 shutter which closes it, are, in truth, very unlike in every thing, 
 but a similarity of dimensions. 
 
 The first distinction we have to point out in the things which 
 the word justice denotes, is that of objective and subjective. 
 The objective is that which the mind contemplates; the subject- 
 ive is a virtue existing in the mind itself. The objective and the 
 subjective, in Greek, which is the most beautiful and flexible <!* 
 languages, are denoted by two different names, but cognate. 
 Dike is objective justice, to which our word right, in one of \\-- 
 many senses, corresponds. Dikaiosune is subjective justice, to 
 which our word righteousness corresponds. But here, unfor- 
 tunately, our stock of paronymous words, derived from right, 
 runs out, while in Greek the root Dike is found in Judge, (Dikas- 
 tes;) in To Judge, (Dikadzo;) in Tribunal, (Dikasterion;) and 
 many more. 
 
 For the sake of fixing in the mind this very important distinc- 
 tion between the objective and the subjective, think of the word 
 sight, as it occurs in the following sentence : A hunter, coming 
 suddenly upon a herd of deer a gratifying sight taking sight 
 at one of them, fired; and the powder happening to flash into 
 one of his eyes, injured it so that, for a while he thought he 
 should lose the sight of it altogether. Here it will be perceived 
 that the word occurs three different times ; and in each has a 
 different meaning. In the first place, it is objective ; in the sec- 
 ond and third it is subjective,, with this difference, that, in the 
 third, it denotes the power of sight, and in the second, an exer- 
 tion of that power. 
 
 The definition of justice, so often quoted from Justinian, is a 
 definition of subjective justice. "Constans et perpetua voluntas 
 suumcuique tribuendi," (a firm and invariable determination 
 to give to every one his own,) tells us what the the virtue called 
 justice is. But it is a definition which gives us no valuable infor- 
 mation as to what justice itself \^ Jt is "suum," one's own. 
 
6 
 
 But what is that which makes any thing mine, or yours, or any 
 one's? Were the definition unexceptionable, the answer to this 
 question would be the same as the answer to the question, what 
 is justice? But it is manifest that the same answer will not suit 
 in both cases. The truth is, that justice gives no man a claim 
 to any thing but one, against God,* and to but very few things 
 as against his fellow-menmuch fewer certainly than is gener- 
 ally imagined. 
 
 To begin then, as is natural, with objective justice, and with 
 that species of it which is called commutative : this, as the word 
 commutative intimates, takes place in the case when, in the in 
 tercourse of human transactions, an exchange of values is made 
 on terms of perfect reciprocity ; so that what is given is exactly 
 equal to w r hat is received. All values of things exchangable 
 may be reduced to labor as the effective element. Let us con- 
 sider labor as measured by time; and let the equation be, a day's 
 work for a day's work. There are thousands of cases in which 
 men are benefitted alike by such an exchange. Two men can 
 do much more, of some kinds of work, in one day, by uniting 
 their efforts, than either of them could do, by himself, in two 
 days : as, for instance, in sawing timber with a cross-cut saw, 
 piling logs, or the like. And there are some kinds of work 
 which require the joint efforts of many men. I will help you 
 to saw logs to-day, if you will help me to-morrow. It is a fair 
 bargain. But if, after fulfilling my part of it, you refuse to ful- 
 fill yours, you have received the value of a day's la^bor for which 
 you have given nothing at all in exchange, This is a violation 
 of commutative justice. But there is, in the case, an act of 
 injustice of quite a different kind, which will be noticed in its 
 proper connexion. But if you should put off the performance 
 of your part of the bargain, till the days become shorter by an 
 hour, then you have, besides the injustice of the delay, cheated 
 me out of an hour's work. Or, if, in performing your day's 
 work, you do it lazily, or carelessly, watching the sun more than 
 
 * On the supposition that man were innocent, he would have a claim on his 
 Maker that his existence should be such as not to be worse than non-existence. 
 This js all the right which an innocent creature can claim of the justice of its 
 Maker. Whatever more than this falls to its lot, is a gratuity originating not 
 in justice but goodnoss. 
 
the business that you seem to be engaged in, or putting into 
 your strokes nothing of that hearty good will and vigor of effort 
 which a man exerts who wishes to do the best he can, you have 
 returned less than you received, and, to that amount, you have 
 been guilty of injustice. 
 
 The four cases of contracts distinguished under the formulas, 
 "do ut des, do ut facias, facio ut des, facio ut facias," may all be 
 reduced to this simple principle of work for work. For, when 
 you give a dollar for a day's work, you yourself must have 
 worked a day for that dollar on the supposition that your work 
 is equal in value to that which you obtain for it. Or, if you 
 work a day and get a dollar for it, the dollar is the same as a, 
 day's work ; since, on the same supposition, the man for whom 
 you worked did a day's work to procure the dollar. Or, if you 
 go to the store and buy with the dollar ten pounds of coffee, the 
 coffee must have cost a day's labor, expended by different hands 
 in its production and conveyance from the place where it grew 
 to the store where you bought it. The fragments of time spent in 
 furnishing the commodity to your hand, taken together, amount 
 to just one day. If more time had been spent in producing the 
 ten pounds of coffee, you would have had to pay more; and if 
 less, less. Whatever arts in business are resorted to for the pur- 
 pose of turning the scale from its equipoise either way, a/e 
 dishonest and in violation of commutative justice. 
 
 To simplify the problem, I have supposed labor in all/cases 
 to be equal in quality. But this is not the case. A Mwyer is 
 paid more for services rendered in one hour, than <he day la- 
 borer earns in a month. Other cases might be mentioned, in 
 which the inequality is still greater: this arises from a difference 
 in the quality of labor. Another element in the problem must 
 also be considered : capital. 
 
 He who works with the aid of capital, has a great advantage 
 over one who works without it. His gains go on increasing as 
 his capital increases. This is so well understood that in needs 
 no illustration. 
 
 Is the difference in these two cases just ? It is of no use to 
 conceal what facts declare on this subject, and that is this, that, 
 
8 
 
 in the opinion of that class who have not the aid of capital, and 
 who cannot perform any but the lowest kinds of labor lowest, 
 because they require the least skill the difference is not just. 
 And as the difference is against them, they are not satisfied with 
 the present state of things, but are looking for some change 
 which will put them on a level with the highest. And there are 
 not wanting those who, for their own ambitious ends, are ever 
 ministering to the delusion of these simple people. 
 
 This is not the place nor the time for shewing that the notions 
 ly which they are captivated, are really a delusion; yet, if one 
 of this class were to come up here, and frankly answer me a 
 few simple questions, after the Socratic method, it appears to me 
 he would soon be convinced of his error, or at least silenced. 
 
 "Do you do a day's work for the same wages," I would ask 
 him, "when you eat at your own table, and when at his for 
 whom you work?" "I have a third more in the first case," he 
 would say. "Why a third more ?" I would ask. "For my 
 boarding," he would reply. "Well, my good fellow," I would 
 say, "your boarding, that is to say, the eatables you have laid 
 up, are your capital, or a part of it, and here, you see that, by 
 means of it, you earn more, by one third, than without it you 
 could. And, since these eatables cost labor, it is biit just that 
 you, who bought them by your labor, should have the benefit 
 of it: is it not just?" "Certainly," he would reply. "Your 
 ansv?er is right," I would say, "and it is right on a principle 
 which -vill apply with equal force to all cases in which the pro- 
 ductive power of capital, by union with labor, increases the 
 effectiveness of the labor." 
 
 As to the difference which arises from the difference of one 
 kind of labor compared with another in regard to quality, the 
 rule, that the higher quality should command the higher price, 
 may be proved to be just, upon the the principle that a greater 
 amount of labor is always concentrated for the production of 
 the higher quality. The lawyer's work before referred to, for 
 example, is not only that which he employs through the voice, 
 pen, ink and paper, as the instruments, but that also whicji he 
 performed through a series of many days, and even yea/s, in 
 
acquiring the skill necessary to enable him to do justice to the 
 cause of his client. His skill is, in fact, his capital. And if 
 there be any skill of any useful sort which comes to man in 
 some preternatural way, and not by labor, bodily or mental, 
 with regard to such the maxim holds, which was applied in the 
 case of the Apostles in reference to the exercise of their mirac- 
 ulous gifts, "freely ye have received, freely give." The modern 
 boaster, who claims to be heard, in the exercise of a vocation 
 for which he has been prepared, without learning philosophy, 
 or any thing which implies labor on his part, is unjust, when 
 he receives any thing by way of compensation for the exercise 
 of his talent. For compensation supposes two things, one 
 weighed against the other in the even scales of a just balance. 
 But here there is nothing to be compensated. 
 
 The time allows me to pursue this part of my subject no fur- 
 ther. One very general remark, however, seems necessary to 
 prevent a misunderstanding of what has been said. The re- 
 mark is this, that commutative justice can never be secured by 
 the strictest adherence to any code of laws which human wis- 
 dom can devise. The complexity of law serves often no better 
 purpose than to form a nest, in which the serpent of injustice 
 may hide itself the more securely. Hence the maxim, "The 
 rigor of law is the height of injustice;" "Summum jus summa 
 injuria." 
 
 The Schoolmen had a saying, that "of contraries the knowl- 
 edge is the same." But the task here would be endless. In 
 the fluctuation and uncertainty of human affairs, injustice is 
 ever assuming new forms. The forms that are possible, are 
 innumerable. The history of the world is made up of them, 
 and yet one part in a million has not been recorded. One of 
 these unrecorded instances I shall here mention by way of spec- 
 imen. A rich landlord, no matter where, rented to a poor man 
 a poor farm. His tenant was bound by contract to pay for the 
 rent so many bushels of grain. The season was unpropitious, 
 and the utmost care and labor of the tenant, expended on the 
 over-worked and ungrateful soil, failed to raise from it the stipu- 
 lated number of bushels ; so that he was compelled to buy grain 
 
10 
 
 to pay his rent. Was this just? It was according to law. 
 And there is no principle in jurisprudence more sacred than that 
 which maintains the inviolability of contracts; 
 
 Hence, if we speak of subjective justice, justice as a living 
 virtue, justice in the heart and character of a man, we must 
 suppose him to recognize* with pious faith and reverence, that 
 higher and purer law, of which Hooker pronounced the well 
 known eulogium, "Her seat is the bosom of God; her voice, the 
 harmony of the universe. None so high as to be above her 
 control : none so low as to be beneath her care." 
 
 The next species of justice which I shall notice, is in its nature 
 different, essentially different, in my humble judgment, from 
 commutative justice under which, however, it is sometimes 
 ranked. And this error in classification has, if I am not mista- 
 ken, furnished many an occasion for criminal conduct. The 
 justice to which I now refer, is, at some one point or other, 
 always felt as a ligature, which, as men try to break it, galls 
 arid frets them the more. They hate it, therefore; and, when- 
 ever they can unite in sufficient numbers to effect their purpose, 
 they never fail to break its bands assunder and cast its cords 
 away from them. I speak of the unprincipled. A just man 
 loves justice. He is not galled by it, for it fits him. "He puts 
 on righteousness and it clothes him : his judgment is as a robe 
 and diadem." 
 
 The end of that justice of which I am now speaking, is to 
 restrict men in their liberty. 
 
 If, in the phrase, "suum cuique" what is every one's own is 
 to be included the right to use it as every one pleases if a man 
 may do what he will with his own then I maintain that no 
 man has any thing at all of that sort. No man has any such 
 rights, as against God, to any part of his own individual self; 
 and no man has any such right, unless under due restrictions 
 and limitations, as against his fellow man. The liberty which 
 we prize so dearly, is not the liberty to do what we please with 
 our own. Such liberty is not for man. With reverence I speak 
 it it is not for God. The Eternal God whom we adore, is 
 bound and restricted in the exercise of his omnipotence by the 
 
11 
 
 holy bands of impartial justice. The liberty which belongs to 
 Him as the sovereign of the universe, respects the exercise of 
 beneficence, not justice. 
 
 A man owns his limbs. That machine made up of a com- 
 plication of levers, which we call bones ; hinges, which we call 
 joints; pullies, which we call muscles and so forth that ma- 
 chine which the Creator has formed and put into the hands of 
 the soul to be moved by it and by moving which the soul can 
 move other things in the surrounding world of matter ; but not 
 otherwise that machine, a certain soul, burning with the "auri 
 sacra fames," the accursed love of gold, puts in motion in the 
 darkness of night and, with it firmly grasping, in that part of 
 it called the hand, an instrument of steel, commits murder kills 
 the sleeping owner of the gold that being, in this soul's way of 
 thinking, the shortest way to get at the possession of the gold ! 
 
 The slanderer moves his tongue this being a part of him- 
 self or his fingers, with a pen in them, or a printing press, with 
 the view of assailing reputation in the use of detraction, calum- 
 ny and lies prompted by envy. Seduction embraces in its 
 serpent folds the victim which it means to devour. 
 
 The spirit of error corrupts the moral sentiments of the com- 
 munity, that it may exercise a despotic rule over those whom 
 it seeks to beguile ; and thus commits an injury, which goes like 
 a virulent poison to the seat of that which may be truly called 
 the life of life, infecting the spiritual part in man's nature. 
 
 Besides all those exhorbitant passions, which prompt men to 
 transgress the bounds of justice, there is what we may call a 
 passion for mischief, a delight in wrongdoing; not for the sake 
 of any advantage that may be gained by it, but from a motive 
 which to me is inexplicable. I have seen persons who seemed 
 to take I know not what delight in tormenting little animals, 
 so far below them in the scale oi being as to place them in a 
 region where the human sympathies do not act with very great 
 force. But suppose the case of the laborious ox patiently toil- 
 ing at the plough, set upon by dogs urged on by some instigators, 
 men or boys, to worry him, to tear his sides, to fix their fangs 
 in his nostrils, exerting all their force to bring him down, w^> 
 
12 
 
 at the same time the owner, indifferent to his sufferings, is 
 goading him on from behind could you account tor the behavior 
 of such wretches on any known principles of human nature? 
 They do it for sport, they say. Hard as that js to believe, we 
 must believe it ; since there is no other imaginable motive for 
 such conduct. And if this be so, then there is such a thing as 
 wanton mischief gratuitous wickedness injustice done for 
 the love of the thing. But, if, instead pf the ox in this 
 picture, we suppose human beings, men and women, especially 
 women -are there in human shape beings who could be guilty 
 of such cruelty and injustice ! 
 
 Now, what I have principally in view in these remarks, is to 
 show that, in all that large and multifarious class of cases in 
 which liberty of action is carried beyond the limits of justice 
 by a criminal invasion of the rights of others, to which class 
 belong the instances I have adduced, and, for brevity's sake, 
 represented in figure, the offender is to be judged on other prin- 
 ciples than those which belong to commutative justice. And 
 when we transfer the maxims which obtain in cases coming un- 
 cjer the hea4 of commutative justice to cases which belong to 
 that species of justice which we are now considering, we intro- 
 duce confusion into our ideas; and are in danger also of 
 introducing immorality into our conduct. If it is a crime in 
 me to shoot at you with an intent to kill, how does it mend the 
 matter, I would ask, if from the sphere of commutative justice 
 I introduce into the case the principle of reciprocity, and allow 
 you at the same time to shoot at me with the intent to kill ? 
 
 If a man does me a wrong to a certain amount, and I injure 
 him as much in return, does the reciprocity do away the injus- 
 tice, the acts destroying each other, like opposite signs in 
 Algebra, or equal weights in opposite scales? Or, are there 
 not rather two acts of injustice in the case, each of which is to 
 be estimated by itself? No one, I suppose, would contend that if 
 a man propagates a lie to my injury, I would be doing justly to 
 propagate another lie which should do him an injury to the same 
 amount. If an angry man strikes me a blow, does that give 
 rne the right to give back the btow with equal force? Not, 
 
13 
 
 unless, by so doing, I could save myself the infliction of another 
 blow; which is a consideration of expediency, not of justice. 
 
 In short, the whole doctrine of retaliation, which was almost 
 universally received and practiced in the world before the Ad- 
 vent of Christ, could hardly have been sanctioned by the 
 gravest philosophers, both of ancient and modern times, had 
 they not confounded together these two kinds of justice, which 
 it is the object of these remarks to distinguish. In the one, a 
 perfect reciprocity is the rule of justice; in the other it is not. 
 The one concerns the rights of property. The other, personal 
 rights. Violations of the one may produce no pain. Violations 
 of the other do inflict pain and suffering. Acts of injustice in 
 cases of the one sort, may proceed from ignorance. The cases 
 which fall under the other, proceed from some malignant pas- 
 sion, such as envy, or revenge, jealousy, or suspicion ; or from 
 some exorbitant desire, such as ambition, or avarice ; or from 
 some corrupt moral principle, such as fanaticism, or atheism. 
 The one commands ; the the other prohibits. The one has for 
 its basis the laws of trade and the frame of society, both of 
 which are founded on exediency. The 1 other is nothing else 
 than that portion of the unwritten eternal law of right, wliidi 
 bounds the freedom of human action by the obligation to re- 
 spect the rights of others. Injuries against the one may be 
 valued in money : those against the other, money does not 
 measure. : It may, therefore, be called inhibitory justice. In 
 your law books the one is called civil, the other criminal. 
 
 There is another species of justice, which deserves to be men- 
 tioned by itself, (for to mention it is all that I can now do*) 
 because it does not, like commutative justice, suppose the ex- 
 change of one thing for another, nor are its requisitions fulfilled 
 by merely'abstaining from injury, as is the case with those r/ 
 inhibitory justice. It is this species of justice by which parents 
 are bound to take care of their children. The children do 
 nothing to bring the parents under obligations to them. The 
 obligations begin with the existence of the children, an^ cease 
 not till the children are able to take care of themselves. 
 
 This may be called natural justice. In the phtfosophy of 
 
14 
 
 Greece and Rome its claims were extended so as to include ail 
 which in modern systems come under the head of imperfect 
 rights, and which we refer, not to justice, but to benevolence 
 and mercy. Under the head of justice, they comprehended all 
 the duties that man owes to his fellow man. Benevolence was 
 not reckoned among the cardinal virtues ; not because, as som.e 
 have supposed, they took no account of it, but because they 
 included it under the head of justice. 
 
 The only other species of justice which remains to be noticed, 
 is what may be denominated rectoral justice. It is that which 
 belongs to government, One way of considering it, is to regard 
 it as belonging, originally, and exclusively, and inalienably, to 
 the Supreme Ruler of the universe, and as being derived from 
 Him to "the powers that be" on earth, to whom he has been 
 pleased to delegate such portion of it as is necessary for the 
 management of the affairs belonging to their office. The other 
 way of considering it, is as originating with the people, hy 
 whom such portion of it is committed to their representatives 
 as may be necessary for the purposes of carrying into effect the 
 will of the people. 
 
 Whether either, or neither of these theories be the true one, 
 or whether both may not contain a mixture of truth and error, 
 it would be foreign from the purpose now to enquire. 
 
 Whatever theory of government men may choose, all I sup- 
 pose, would agree in this, that every government must have the 
 power to reward and to punish. All, it is likely, would agree, 
 further, that, in rewarding and punishing, every government 
 ought to regard justice as the measure. 
 
 But in going further than these two points, we meet, with a 
 great diversity in men's opinions, which, I am inclined to think, 
 ift made to seem still greater by their different ways of express- 
 ing their opinions in words and actions. 
 
 I* these cases, also, as in many others, it sometimes happens 
 that tfie opinions which people express in words, in actions 
 they deny. 
 
 As to \hat part of justice which -consists in rewarding, gov- 
 ernments have differed exceedingly. 
 
15 
 
 The ancient Athenians, instead of rewarding their most dis- 
 tinguished citizens, banished them; The ostracism, by which 
 they drove from among them some who had performed the 
 most illustrious services for the state, can only be accounted for 
 by referring it to the extreme jealousy with which they guarded 
 their liberties. To punish a man, not for any thing actually 
 done by him, or even intended to be done, but for something 
 whieh possibly he may do hereafter, is so flagrant a violation 
 of every principle of justice, that we can have no very exalted 
 opinion of the moral virtue of the people who could admit it 
 into their policy. 
 
 The government of Great Britain presents an example of 
 what, according to the notions commonly received among us, 
 seems to carry the rewarding power into the opposite extreme, 
 remunerating services done to the state by high offices, honors 
 and emoluments, descending to the posterity of the hero, or the 
 man of science, by whom they are rendered. A small state 
 surrounded by enemies, must stimulate her citizejrs by high re- 
 wards, to excite them to deeds of high achievement. And, if 
 ever the time shall come when the spirit of discord, rending 
 assunder the bands which now unite these States, shall put 
 them, in regard to each other, in relations similar to those which 
 obtained in that condition of things in which the government of 
 Great Britain and the other governments of Europe had their 
 'origin, that same policy will of necessity be resorted toon this 
 side the Alantic. 
 
 When the merit of the citizen consists simply in not trans- 
 gressing the laws, his country rewards him sufficiently in simply 
 not punishing him. His obedience is negative, and so is his 
 recompense. "Non hominem occidi." "Non pasces in cruce 
 corvos." HORACE, EPIST. xvi. 
 
 As to punishments, the nature of that justice by which they 
 are inflicted and the ends at which it aims, determine their 
 character. 
 
 Punishments are disciplinary, when they are inflicted with 
 the view of working a reformation on the offender ; exemplary, 
 when the intention is to deter others from following his 
 
16 
 
 example ; condign, when the punishment is iri proportion to the 
 atrocity of his offence ; and vindicatory, when this proportion 
 is maintained by the inflicting upon him an amount of suffering 
 adequate to the moral turpitude of the offence; 
 
 In disciplinary and exemplary punishments, justice is no 
 further concerned than in guarding the culprit against too heavy 
 infliction. If it falls short of the proper measure, that is not a 
 matter for justice to settle, or to care about, but expediency. 
 But, in condign punishment, justice is concerned that the pun- 
 ishment be not less than the offence, as well as that it be not 
 greater. 
 
 But when we speak of less or greater in this case, the refer- 
 ence is to that in the crime which I have called its atrocity, by 
 which I mean that in the character of a crime by which it pro- 
 duces injury, pain, grief, disturbance to man. To this, which is 
 a moral estimation of a crime from its effects^ legislators very 
 properly add other considerations drawn from expediency, such 
 as the facility with which the crime may be committed, and the 
 danger of its becoming prevalent, proportioning the punishment 
 to these. But, in vindicatory punishment, justice looks into the 
 heart of the offender, and, on discerning the amount of moral 
 turpitude there, so far forth as that turpitude has gone out and 
 exerted itself in action, measures out to him an answerable 
 amount of punishment, that is, pain which shall be equal, in 
 intensity and duration, to the moral turpitude, 
 
 The human judge sees only the atrocity, the outward visage 
 of the crime, and conjectures its turpitude, its inward character, 
 from that. The atrocity is that alone which human justice can 
 reach. The turpitude, it is true, is in most cases equal to the 
 atrocity; not always. A hideous face is sometimes seen on a 
 person who is found, on closer acquaintance, not to be what he 
 seems, "a cannibal savage :" and a plausible face often hides a 
 black heart. And it is somewhat so in actions. The omniscient 
 God alone, who cannot be imposed upon by false testimony, or 
 false appearance, is competent to the task of inflicting vindica- 
 tory punishment. 
 
 If it is asked whether justice requires Him to inflict it in al! 
 
cases, I promptly answer, no. Reason could not, perhaps, de- 
 cide the point; but the Gospel decides it in favor of the offender, 
 who repe-nts and truly believes that holy Gospel. But if he 
 should not repent? Ask me not what then ! From no quarter 
 of the sky, from no point of the compass on earth, from no 
 intimation of the conscious spirit within, can an omen be drawn 
 in favor of his prospects who is unjust. 
 
 The rectoral justice of the Most High may not require Him 
 to punish moral turpitude for its own sake; since in that case 
 He must punish it wherever it is found ; so that there would be 
 noplace for pardon to the penitent; and yet the laws of his 
 moral government may^be such as that misery may flow from 
 an infraction of them in a natural way, as we see it does in the 
 case of physical laws- not immediately, for that would be to 
 change the condition of human life from a state of probation 
 into a state of retribution, but in some distant period in the 
 existence of the transgressor. 
 
 In opposition to this reasoning I am aware that it will be al- 
 ledged, that the doctrine of atonement, which lies at the found- 
 ation of the Christian's Creed, is constructed on the necessity, 
 that God should punish moral turpitude on its own account, and 
 in all cases, and that we, as transgressors, can look for pardon 
 only on the ground that our moral turpitude has been imputed 
 to another, our blessed Savior, and punished in him.* To which 
 I reply that moral turpitude inheres in the person and cannot 
 be transferred by imputation, or in any other way ; and that, as 
 moral turpitude is the ground of punishment, the Savior was 
 not punished, and could not in justice be punished for trans- 
 gression, since he was innocent. Punishment is a correlative 
 term, and refers to moral turpitude. Each supposes each : as 
 a ruler supposes a subject ; and a subject, a ruler. The inno- 
 cent may be made to suffer for the guilty; but not punished, 
 But here again it is assumed that for the innocent, to suffer sup- 
 poses guilt under the just government of God, and accordingly 
 
 The principle of zacrijicial substitution, on which the scriptural doctrine 
 of atonement is ba*er), frees that doctrine' from the absurd canfequences w/th 
 the theory of a moral wib,titulion is embarrassed. 
 
18 
 
 we are told that the sufferings of infants prove that they are 
 guilty. Original sin I do not deny; but this assumption I am 
 constrained to deny. The justice of God does not require that 
 He exempt the innocent from suffering. It only requires that 
 He make existence in some degree a blessing. Now, if to one 
 of his creatures He gives two degrees of enjoyment, filling up 
 to the full its two capacities ; and to another gives ten capaci- 
 ties, filling six of them with enjoyment, while four are full of 
 pain : these two creatures are equal in point of happiness, 
 though the one is exempted from suffering and the other not. 
 The doctrine of atonement does not require in its vindication 
 that the teachings of natural religion should be contradicted. 
 "Shall not the Judge of all the earth do right ?" 
 
 These distinctions of justice into commutative, inhibitory, 
 natural and rectoral, are not, it appears to me, distinctions with- 
 out a difference. Nor are they useless. No little mischief is 
 done by confounding them ; as did time permit, might be easily 
 shown. Take the maxim, for instance, "Volenti non fit inju-< 
 ria" that is, injustice is not done to one who consents and 
 you will find that it applies only to cases in which commutative 
 justice is concerned, but not at all to cases coming under any 
 of the other sorts of justice which have been specified. If ap- 
 plied to cases of inhibitory justice, it is in fact a most false and 
 pernicious maxim, and justifies the conduct of those, who, for 
 sake of dishonest gain, furnish the intoxicating cup to such as 
 are willing to receive it, and that whole tribe of unjust persons, 
 the very pests and plague of society, who allure to certain ruin 
 all such simple ones as by their plausible arts they can capti- 
 vate. 
 
 On the other hand, it must be observed that the distinctions 
 which have been pointed out, do not cut the great sphere of 
 justice by a sheer division into separate sections, so that noth- 
 ing shall appear in any two of them which belongs to the same 
 act. Such divisions can rarely be made in moral subjects. 
 For example, it was remarked under the head of commutative 
 justice, that if I gave to a man a day's work, relying on his 
 promise to give me a day's work in return, and he should not 
 
19 
 
 do it, I would be injured in property to that amount, but that 
 there would be in the case an injury of another kind, which 
 would come under our notice in its proper connexion : and that 
 is here. The injury consists in the pain I should be compelled 
 to feel in looking at the falseness of the man, brought home to 
 me and thrust upon my attention in a way which should force 
 me to look at it for a time. There is in it also a violation of 
 natural justice and the divine law. 
 
 Will you, young gentlemen, allow me in concluding these 
 my remarks, to say to you ^plainly that the profession of the 
 law which you have chosen, though necessary and honorable, 
 will expose you to temptations, from which nothing can so well 
 preserve you as that living sense of justice in the heart, which 
 is the foundation of whatever is estimable in the character of 
 a virtuous man. Plato, in his ''Republic," has some noble as 
 well as some curious thoughts on this point, which, did time 
 permit, I should like to present to you. He begins his specula* 
 tions by inspecting the human constitution, to see if he can 
 discover in it what justice is, but he finds himself at a loss, as a 
 person would be who should try to read a piece of writing in 
 which the letters are so very small as not to be easily traced 
 by the sharpest eye, and throwing it away, turns to another 
 piece of writing in which the words and letters are the same 
 as jn the first, but large and full. This is his "Commonwealth," 
 the constitution of which is the exact counterpart of that which 
 nature has established in the individual man. 
 
 In the first part of his subject he recites the legend of the 
 shepherd Gyges, which Cicero quotes somewhere in his "Offi- 
 ces." The legend is briefly this : "Gyges goes down into a 
 chasm which an earthquake had opened far under ground, at 
 the bottom of which he finds a dead body of a man, and on 
 one of his fingers a brilliant ring, This he pulls off and puts 
 it on his own finger. On coming out again and joining the 
 company of his fellow-shepherds, he finds that, upon turning 
 inwards the signet of the ring, "he becomes invisible. Availing 
 himself of this new power, he makes his way to the throne of 
 the kingdom by debauching the queen and murdering the king/* 
 
20 
 
 The moral of the legend is this, that no man is just who would, 
 were he the owner of such a ring, do an unjust action. Plato, 
 however, goes further, and supposes the world to be such, that, 
 by practising injustice, a man should infallibly gain all advan- 
 tages, wealth and power, and honor, and the reputation of being 
 just, not only among men, but with the gods themselves, 
 whom he supposes to be gained over to favor this unjust man 
 by his show of piety ; so that he is, by the gifts of fortune and 
 the favor of men and the gods, put into possession of the great- 
 est happiness here and hereafter ; and all this, as the fruits of 
 injustice : while, on the contrary, the just man has to encounter 
 the opposite of all these good things, and in addition to all his 
 sufferings, the hatred of men and of the gods. After stating 
 such an hypothesis, which, as you see, leaves to the just man 
 no other motive to the practice of justice but the love of justice 
 itself, while all conceivable inducements are cast in the oppo- 
 site scale, Plato was evidently on the point of pronouncing the 
 same decision as before on the hypothesis of the ring. But he 
 disappoints his reader, and starts back at the sight of what his 
 imagination had raised, not finding it in his heart to subject his 
 just man to so severe a test. He shrinks aghast from the mon- 
 ster of his own fancy's creation, and covers his retreat by al- 
 Jedging, as I have before stated, that, in the tablet he is attempt- 
 ing to read, the letters are too minute and the strokes too fine 
 to impress themselves distinctly upon his vision. 
 
 Young gentlemen, I will not urge upon you so hard an hy- 
 pothesis as this of Plato. I will only suppose justice, and 
 weakness, and no fee on the one side and, if you please, pop- 
 ular odium on the same side : and on the other, popular favor, 
 applause and a rich fee : such is often the problem which prac- 
 tically meets us, poor mortals. Happy he who in looking back 
 over his course through life, can point to decision after decision 
 passed in the council chamber of the heart in favor of justice, 
 while interest plead, pleasure solicited, and fear threatened, on 
 the opposite side : still more happy, if no decision whatever, in 
 matters of moment, can be found possessing the contrary char- 
 acter j righteousness within, which is subjective justice, reigninrr 
 
31 
 
 victorious iu all the struggles appointed for the exercise and 
 trial of his virtue on the theatre of life. And here we see the 
 connexion between morals and religion. For human virtue 
 being alone cannot sustain itself; but must call to its aid faith, an 
 auxiliary from heaven; and hope and fear, the children of faith. 
 
 In concluding this discourse on the nature of justice, a sense 
 of justice to you, young gentlemen, constrains me to say, that 
 your close application to study and your correct and gentlemanly 
 deportment, which has frequently been the subject of remark 
 privately among the members of the Faculty, and which de- 
 mands this more public commendation, encourages the expec- 
 tation that your influence hereafter, in your professional course, 
 will be such as to promote the best interests, not only of those 
 portions of the community where you may respectively reside, 
 but of this commonwealth and the nation at large. 
 
 Let not this expectation be disappointed. And remember 
 that to this end it will be necessary for you to devote your wKole 
 care and study to improve yourselves in every attribute which 
 belongs to the character of a good man and a good lawyer. 
 
 Let no low dishonorable practice of the pettifogger, seeking 
 to promote litigation that he may procure a fee; no dishonest 
 arts of the demagogue, flattering the people that he may rise 
 into office by their votes; no indecencies or licentiousness of the 
 tongue ever disgrace your professional course. Be not wanting 
 in fidelity and zeal in the cause of your client, but let not your 
 zeal transport you beyond the bounds of truth, justice or de- 
 corum. And let no irregularities in your habits of private life, 
 draw off your mind from those pursuits of knowledge and virr 
 tue which will dignify and adorn your profession, and extend 
 your sphere of usefulness in the world. Above all, cherish in 
 your hearts reverence for the Almighty Ruler of the universe, 
 with whom perfect justice dwells, and let no false shame, nor 
 fear of the sneers of the infidel, nor press of business, prevent 
 you from studying His Book of laws and observing them in prac- 
 tice, remembering that a sense of duty to Him is the best 
 preservative of justice, and the firmest ba^is of good order 
 amons; men. 
 
Hssibsnt 
 
 Frederick T. Brown, Spencer, 
 
 Thomas H. Brunner, Princeton, 
 
 Morton C. Hunter, Bloomington, 
 
 Senior Class. 
 
 STUDENTS 
 
 Of the LAW DEPARTMENT of the INDIANA UUNIVERSITY, 
 Session of 1849-50. 
 
 INDIANA. 
 *do 
 <do 
 
 INDIANA, 
 
 do 
 
 do 
 
 ARKANSAS. 
 INDIANA, 
 
 do 
 
 do 
 
 OHIO. 
 INDIANA. 
 
 do 
 
 do 
 
 do 
 
 INDIANA. 
 
 do 
 
 IRELAND. 
 INDIANA. 
 
 do 
 
 do 
 
 D. C. 
 INDIANA. 
 MARYLAND. 
 INDIANA. 
 
 do 
 *Io 
 
 do 
 
 Total, 28, 
 
 William A. Bugh, 
 George A. Buskirk, 
 Ambrose B. Carlton, 
 Aden G. Gavins, 
 Richard A. Clements, 
 Isaac W. Love, 
 Robert H. Milroy, 
 Sheridan P. Read, 
 Robert A. Smith, 
 Alfred Wheeler, 
 Elias Willits, 
 Simeon K. Wolfe, 
 
 Decatur, 
 
 Bloomington, 
 
 Bedford, 
 
 Helena, 
 
 Washington, 
 
 Cory don, 
 
 Delphi, 
 
 Urbana, 
 
 Booneville, 
 
 Bedford, 
 
 Centreville, 
 
 Corydon, 
 
 Jnnior 
 
 Edward B. Allen, 
 Thomas Bigham,' 
 Michael F. Bourke, 
 Marmion H. Bowers, 
 William Brown, 
 James C. Faris, 
 Alexander M. Haskell, 
 William S. Hillyer, 
 George A. Johnson, 
 John Lopp, 
 Blackford B. Moffatt, 
 Eliphalet D. Pearson, 
 James Woodward, 
 
 Resident Graduates, 3; 
 
 Terre Haute, 
 
 Bloomington,, 
 
 Dublin, 
 
 Moore's Hill, 
 
 Kokomo, 
 
 Rensaeller, 
 
 Washington, 
 
 New Albany, 
 
 Salisbury, 
 
 Corydon, 
 
 Te^re Haute, 
 
 Spfmgville, 
 
 Hloomington, 
 
 Seniors, '12; Juniors, 13 
 

 
 
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