Suppose a high-spirited, but good-natured, young man receives an insult. It is possible that his first, or, at least, his second impulse, may be to pass it over, and content himself with despising the brute who offered it. The brute, however, mistaking love of peace for fear of war, and glad of an opportunity of oppressing safely, repeats the aggression; the bystanders, who, to a young man, are the representatives of all mankind, past, present, and to come, begin to show by their looks that they had not expected so much philosophy. Our hero gives or sends a challenge; a “meeting takes place,”—the brute is shot dead, and nobody regrets him, not even his creditors, for they had lost all hopes.
But, in the mean time, what is the situation of the young man and the seconds? Divinity and Law have long ago settled the question—they are murderers. A warrant is issued for their apprehension; they possess, however, good friends who have spare attics, and the warrant cannot reach them. But their mothers, sisters, mistresses, and maiden aunts, who read in the papers that the coroner’s inquest has returned a verdict of “Wilful murder against John Smith, Charles Jones, and William Brown,” are in despair. The horrible visions of black caps, chains, and gibbets, flit before their eyes; and, in short, whole families are thrown into unaffected and very severe affliction. In the midst of all this suffering the assizes approach, and the accused surrender themselves for trial. The “unfortunate gentlemen” (to use the phraseology of the newspapers) appear at the bar, “dressed in genteel mourning, and deeply affected with their awful situation.” The counsel for the Crown details the case, lays down the law, “under the authority of his Lordship,” and then concludes by telling the jury, that, “if the facts are as he has stated them, he cannot see how they will avoid pronouncing the verdict of guilty; but he fervently hopes that something may arise to relieve them from so painful a duty.” In the examination of the evidence everybody is aware that the Judge, the counsel on both sides, and the witnesses, are straining all their ingenuity to prevent a verdict against the prisoners; and everybody sympathises with their endeavours. His Lordship, in his charge to the jury, explains to them again that every man killed in a duel is murdered; but he at the same time shows that there are some technical defects in the evidence, which he places before them in a strong light. The jury “turn round for a few minutes,” and find a verdict of “Not guilty.” Upon this there is considerable applause manifested among the auditory, “which meets with the marked reprehension of his Lordship,” who threatens to commit the offenders. The court is now cleared, all the world is pleased to find that poor Smith is acquitted, agrees that duels are horrid things, and hopes that, as they become so common, the Judge will direct the very next man who fights one to be hanged.
In this little sketch, extravagant as it would appear to any rational being who had never heard of the practice of duelling, we have tried not to “o’erstep the modesty of nature.” How we have succeeded, our readers must determine; but if we have erred we shall at least have no excuse; for, judging from what has been done by others, it should seem impossible either to preach, legislate, or write on the subject without being betrayed into some absurdity.
To begin with the preachers. Does it not, we ask, perplex all our ideas of morality to call the act of killing a man who has fired at me, and who has agreed to let me fire at him, a murder? Has it anything in common with stealing to his bed at the dead of night, and stabbing him in his sleep? Try to shake hands with one murderer (if he must be so called), and then with the other; do you not feel a difference? Can you doubt for a moment which man you would rather be, whose feelings you would rather have, whose remorse you would rather bear?
To legislators we have more to say. In the first place, they have provided no practical remedy for the wrongs which are now attempted to be redressed, or at least checked, by duels. If a fellow picks my pocket of an old handkerchief, I have him transported without much trouble; but if I am held up to the scorn and ridicule of my friends, provided the artist be skilful in his profession, provided he can
“Spargere voces
Ambiguas,”
and play off “all the cruel language of the eye,” I am, even in theory, without redress. Nay, he may venture to go much further, if he have legal knowledge enough to remember all the nice distinctions which have been made on the subject. For instance, he must not say I am a highwayman, but may affirm with impunity that I am worse than a highwayman; and he may load me with the epithets of “scoundrel, rascal, villain, knave, miscreant, liar, and fool,”[[9]] as long as he pleases; unless I can show that some actual loss in money, or money’s worth, has accrued to me from his defamation. So that if my character stands so high, or his character so low, that nobody believes him, he goes unpunished. But we will suppose his rage to be so excessive as not to be confined within these ample bounds—we will suppose that after carefully noting down the words in my pocket-book, and calling upon the bystanders to con them over often enough to fix them firmly in their memory until the next assizes, I go to my attorney, and he enters an action against the slanderer. In due time, I obtain a sight of the pleadings, and find that I hold myself up as a person of the highest character, and impute the ill-conduct of the defendant to his great envy of “my happy state and condition.” Then the slanderous words are set out, as the lawyers call it, with so much verbiage, that they appear quite ludicrous even to myself. At length we come into court. My counsel affect great gravity, which does not impose on a single individual; states my case to the jury, the counsel for the defence laughing judiciously at every part of his address which is likely to produce any effect. The jury, who do not remember that an advocate may be paid for laughing as well as for talking, are, (unconsciously, perhaps,) more influenced by the smiling face than the oration. The witnesses are next examined, and another opportunity is offered for covering the whole transaction with ridicule. It is now the turn of my opponent’s counsel to speak. He represents the affair as a foolish quarrel which happened a long time ago; wonders that neighbours should come to tear themselves to pieces in a court of law; takes hold of anything ludicrous in the defamatory expressions, makes the audience laugh, and sits down. Now all this, on whichever side the verdict may be given, is a real triumph to the aggressor; the public feeling is too often with him: there is nothing natural or apposite in the tribunal. The delay, the machinery, the expenses, and the formality of the proceedings, cast an air of the mock-heroic over the whole matter, very little tending to satisfy the mind of the injured party. The offence, too, was addressed to the feelings, and the recompense is one to be pocketed.
Thus it is clear that the law has provided no efficient remedy, and perhaps can provide none, for a very large class of severe injuries. But this is not all; the injured party is often willing, as far as his own private feelings are concerned, to forego any redress, and bear the aggression as he may. But society, which has made one law to punish the duellist as a murderer, has, at the same time, by another, imposed upon him the necessity of fighting. This latter law, it is true, does not frown its terrors from columns of black letter, nor is it supported by volumes of cases and commentaries; but we rather think that the want of these auxiliaries is but too well compensated by the swiftness and certainty of its administration. No waiting until the assizes or sessions—no flaws in the indictment—no cajoling the jury. Whoever defies public opinion is convicted on view, and punished immediately on conviction. Who, then, shall say that he does not suffer by law? and that, in fact, the two laws, one of which commands, and the other prohibits duelling, are both the offspring of society? Is it, or can it be, of the least importance to the sufferer by this tyranny, that the framers of one of these enactments call the other law wicked and absurd? It may be absurd; the duellist may feel and think it to be so, but is he therefore to endure its punishment? Does he not act naturally, and we may even add rationally, in obeying the power which can best carry its will into execution? He knows that the penalty inflicted by the law of public opinion is certain; he knows also that it is the most galling which a man of high spirit and quick feelings can endure. On the other hand, he can be sure, even reasoning à priori, that two opposing laws cannot both exist in full vigour at one and the same time. But he has better evidence; he finds by his daily experience that the statute-book is almost a dead letter when it comes in contact with public opinion. Legislators, too, often forget that laws will not administer themselves. If a code of self-executing statutes could be framed, public feeling might for a time be disregarded; or if some ingenious mechanic could construct a steam-engine which, by different movements, should perform the work of judge and jury, there would then be some chance that iron laws might be enforced. But while the old plan of manual labour is pursued—while judges and juries, and witnesses and counsel, are human beings, and live in society, it will be in vain to expect from them the enforcement of edicts which run counter to all their sympathies. Let it not be supposed that we think harshly of legislators; we do not; but they have to do only with abstractions. It is easy to fulminate the terrors of the law against A, B, C, or any or all of the letters in the alphabet; but it is a very different thing to execute those threats upon real men of flesh and blood. A, B, and C, have no eyes; A, B, and C, have no hands, organs, senses, affections, passions. They are not fed with the same food, hurt with the same weapons, subject to the same diseases, healed by the same means, warmed and cooled by the same winter and summer as men are. “If you prick them, they do not bleed; if you tickle them, they do not laugh; if you poison them, they do not die; and if you wrong them, they cannot revenge.” Poor A, B, and C, have neither mothers, mistresses, aunts nor sisters; they do not “appear at the bar in genteel mourning;” they are not “unfortunate gentlemen.” In short, they can awake no sympathies; and there is no possible reason why the law should not take its course in the cases of such wicked and daring offenders, except that these abstractions cannot be caught.
With respect to one class of the community, officers in the army, the case is even more glaringly absurd and unjust; for, with regard to them, the laws of the land are actually at variance among themselves. By the Mutiny Act, the King has an “unlimited power to create crimes, and annex to them any punishment not extending to life or limb.”[[10]] If, then, he shall be found to have exercised the power in the punishment of officers for not fighting duels our position will be fully proved.[[11]]