“Yes, tell me!”
“Well, Mr. P.”—Arthur named a man who has since become a famous judge—“had had something to do with a duel. As I understand it he was neither principal nor second, but at any rate he saw the duel fought. The principals, or one of them, had been brought before the judge for trial, and Mr. P. was called as a witness. When a question was put to him by the judge himself, Mr. P. replied: ‘I am not a lawyer. I ask the privilege of consulting counsel before answering that question.’ To this the judge responded: ‘To save time Mr. P., I will myself be your counsel. As such I advise you to decline to answer the question. Now, as the judge of this court, and not in my capacity as your counsel, I again put the question to you and require you, under penalty of the law to answer it.’ Mr. P. answered: ‘Under advice of counsel, your Honor, I decline to answer the question.’ The judge responded: ‘Mr. Sheriff, take Mr. P. into custody. I commit him for contempt of court.’ Then resuming his attitude as counsel, the judge said: ‘Mr. P., as your counsel I advise you to ask for a writ of Habeas Corpus.’
“ ‘I ask for a writ of Habeas Corpus, your Honor,’ answered P.
“ ‘The court is required to grant the writ,’ said the judge solemnly, ‘and it is granted. Prepare it for signature, Mr. Clerk, and serve it on the sheriff.’
“The clerical work occupied but a brief time. When it was done the sheriff addressing the court said: ‘May it please your Honor, in obedience to the writ of Habeas Corpus this day served upon me, I produce here the body of R. A. P., and I pray my discharge from further obligation in the premises.’
“Then the judge addressed the prisoner, saying: ‘Mr. P. you are arraigned before this court, charged with contempt and disobedience of the court’s commands. What have you to say in answer to the charge?’ Then instantly he added: ‘In my capacity as your counsel, Mr. P., I advise you to plead that the charge of contempt which is brought against you, rests solely upon your refusal to answer a question the answer to which might tend to subject you to a criminal accusation.’
“ ‘I do so make my answer, your Honor,’ said Mr. P.
“ ‘The law in this case,’ said the judge, ‘is perfectly clear. No citizen can be compelled to testify against himself. Mr. P., you are discharged under the writ. There being no other testimony to the fact that the prisoners at the bar have committed the crime charged against them, the court orders their discharge. Mr. Clerk, call the next case on the calendar.’[B] Now wasn’t all that a roaring farce, with the judge duplicating parts after the ‘Protean’ manner of the low comedians?”
“It certainly was,” answered young Bannister. “But what are we to do?”
“Why, make up your minds—or our minds I should say, for I am a Virginian now with the best of you—whether we will or will not permit duelling, and make and enforce the laws accordingly. If duelling is right let us recognize it and put an end to our hypocritical paltering with it. I’m not sure that in the present condition of society and opinion that would not be the best course to pursue. But if we are not ready for that, if we are to go on legislating against the practice, for heaven’s sake let us make laws that can be enforced, and let us enforce them. The little incident I have related is significant in its way, but it doesn’t suggest the half or the quarter or the one-hundredth part of the absurdity of our dealing with this question.”