PART III.—DUELLING.
[Note on Part II. on Criminal Responsibility in cases of Insanity.—A physician in a responsible official situation, affording him great opportunities for observation, has addressed to us a note from which we extract the following passages. Our only object is to aid in eliciting truth; and our anxiety to do so is proportionate to the difficulty and importance of the subject to which the ensuing letter has reference.[39]
"The article on Oxford and M'Naughten has interested me very much; and though I cannot at all admit the principle of punishing a man for his misfortune, I am yet satisfied that the doctors have assumed too much, and have helped to let loose upon society some who deserved hanging as much as any who have ever suffered the extreme penalty. The test of insanity, as laid down by the Judges on the solemn occasion to which you refer, is manifestly of no value; for it is, I might almost say, the exception for an insane person not to know the difference between right and wrong. Many of them deliberately commit acts which they know to be wrong. Dadd killed his father, and immediately fled to France to avoid the consequences of his crime; and nobody ever doubted that he was one of the maddest, if not the maddest, of the mad. Touchet shot the gunmaker, not only with a full knowledge of the nature of the crime, but for the express purpose of bringing about his own death. He has entertained various delusions: amongst others, the notion that certain passages of Scripture have special reference to himself personally; and, as regards those in actual confinement, on account of their mental malady, the majority know perfectly well that it is wrong to tear, break, and destroy, to injure others, and indulge their various mischievous propensities. So well satisfied are many of them that they are doing wrong, that they will try to conceal acts which they know are not permitted; and, in this way, a propensity to bite, or kick, is indulged in only when it is believed that it can be done unobserved. It seems to me that, in these most painfully embarrassing cases, every one must stand on its own particular merits; and, as neither judges nor doctors can say where sanity ends, and insanity begins, so no possible rule that can be devised will be alike applicable to all; but the previous habits and course of life of the person accused, together with the absence or presence of any motive, will go far to remove the difficulties which necessarily beset the question. I am not at all prepared to say that, because any degree of mental disturbance has been shown to exist, a person should be held irresponsible. It is a doctrine fraught with such dreadful danger to society, that it is very properly viewed with jealousy; but, when clearly proved that the mind was so far disturbed as to entertain delusions before and at the time of committing the offence, I would never resort to capital punishment. The Omniscient alone can tell how far the disease has gone, and to what extent the unfortunate being was really responsible for his actions to his follow men.">[
Is, or is not, a trial in this country for duelling to be regarded as a Farce following a Tragedy? There are those who say that it is; but we are not of the number. Such trials often greatly excite the public mind, and array opinions and prejudices against each other in such a manner as to disturb and derange the judgment. Then more or less is expected from the law, and its administration, than is right. If the heated public should have prepared itself for a conviction, loud and violent is its reclamation against an acquittal, especially if it have been brought about by what are styled technical objections, and vice versâ. They forget, under the impetuous impulses of a sense of natural justice, that settled rules of legal procedure must be observed indifferently on all occasions, if even-handed justice is to be administered in a court of justice. How did these rules come to be settled? They are the results of centuries of experience—of ten thousand instances of the advantage, nay, the absolute necessity, for observing them. If it could be imagined with any, even the slightest foundation of truth, that those sworn to decide according to the law and the facts had wilfully shut their eyes to the one or the other—or, either directly or indirectly, connived at an evasion of the letter or a violation of the spirit of the law, in order to secure a particular result—then there is no power in language adequate fitly to denounce so deliberate and awful a perjury, so monstrous an outrage on the administration of justice.
Bonâ fide duels are always lamentable affairs, under whatever circumstances they may happen, especially when attended by loss of life or serious personal injury—occurring, too, in a highly civilised and Christian country like ours. They properly arouse the grief and indignation of every thoughtful and virtuous member of the community; whom, however, they also satisfy as to the prodigious practical difficulty of dealing with such cases. While the law of the land is clear on the subject as the sun at noonday—alike unquestionable and unquestioned—there yet exist, in almost every detected duel, far greater difficulties than are suspected by the public, in bringing to justice the guilty actors. First of all, it must be borne in mind how deep an interest they have in cutting off all means of future evidence, by intrusting a knowledge of the affair to the fewest persons necessary for carrying it out, and by selecting scenes remote from observation. Then, again, let it be remembered that both principals and seconds, and all others present aiding and abetting, have incurred heavy criminal liability—are liable to be indicted for murder, as principals or accessories; and, consequently, none of them can be compelled to furnish any evidence which may even tend to criminate himself. This great rule of criminal law has doubtless operated as a great indirect encouragement to duelling; but how is this difficulty to be encountered? Must the rule be abrogated?
Assuming, however, the existence of evidence, and that it is satisfactorily adduced before the jury, it then becomes the duty of the judge and the jury to act in accordance with their oaths: the former to lay down the law distinctly and unequivocally; the latter to find their verdict conscientiously according to the principles of law so laid down, as applicable to the proved facts of the case. If a conviction ensue, the judge must then pronounce the sentence of the law; and it then depends upon the discretion and firmness of the executive whether that sentence shall be carried into effect. Take the case of a fatal duel, conducted with unimpeachable fairness, as far as concerns the practice of duelling—and that the prisoner had received great provocation from his deceased opponent, who had obstinately refused retractation or apology. What is to be the decision of the executive? What will be its moral effect, as an encouragement or discouragement of duelling? Will it operate as a tacit recognition, to any extent, of the practice of duelling, as at all events a necessary evil, and denuded of moral turpitude? These are questions by no means of easy solution.
In the present constitution of society in this country—a Christian community—duelling is a practice environed with difficulties, whichever way it may be approached by its most discreet and resolute opponents. We must deal with men and things as they are, at the same time that we would make them what we think they ought to be. How many professing Christians—men of otherwise pure and virtuous lives—have gone out deliberately to take the life of an opponent, or expose or sacrifice their own!—solely, it may be, from a puerile notion that their honour required the committing of the crime! "It is not one of the least evils of this system," it has been well observed, "that the word honour—which, rightly understood, denotes all that is truly noble and virtuous—should be prostituted as a pretext for gratifying the most malignant of human passions, or as a cover for that moral cowardice—the fear of being thought afraid." This is one of the chiefest roots of the poisonous tree: and can human laws kill it? We think they can. If the legislature were really intent upon annihilating duelling, its members would long ago have acted on the suggestion of Addison—that, "if every one who fought a duel were to stand in the pillory, it would quickly diminish the number of these imaginary men of honour, and put an end to so absurd a practice." If men will fight for a little stake, let them be made into little men, by enduring a degrading punishment; if for a great stake—that is to say, the gratification of malignant passions—let them be treated as great criminals, and die the felon's death, or live his life. Let justice be really blind in all such cases, her sword descending upon noble and ignoble of station alike.
We acknowledge that there is one aspect of the practice of duelling, which somewhat perplexes the moralist: for it cannot be denied, or doubted, that duelling operates as a great preventive check to ruffian insolence and violence—as a potent auxiliary in preserving the necessary restraints and the courtesies of society. "It must be admitted," says Robertson, "that to this absurd custom we must ascribe, in some degree, the extraordinary gentleness and complaisance of modern manners, and that respectful attention of one man to another, which at present renders the social intercourse of life far more agreeable and decent than among the most civilised nations of antiquity." How many a viper-tongued slanderer's lips have been sealed by the dread of a bullet! How many an insolent inclination to personal violence has been checked—how many a truculent heart has sickened, before the prospect of a "leaden breakfast!" Take a single case, which is really embarrassing to the candid opponent of duelling; an insult offered, by either words or deeds, to the character or person of a lady whom one is bound to protect—an injury beyond all legal cognisance, and perpetrated by one occupying the station of a gentleman. To one who does not bow under the paramount influence of religion, the harassing question occurs,—What is to be done? Cases may be easily imagined in which it would be idle to say—"treat the offence and the offender with contempt—leave them to the contempt of society;" where such a course would only add to the poignancy of the wrong or insult, and invite aggravation and repetition. Let the outraged lady be imagined one's own wife, or daughter, or sister! Is the wrong to be perpetrated with impunity? asks the upholder of duelling. "What would you do," retorts his opponent; "will you deliberately take the life of the offender, and give him an opportunity of taking yours?[40] Is that your notion of punishment, or satisfaction? What will be the effect of an example such as this, upon society at large? Is every one to be at liberty to do the like?—thus deliberately to ignore the law of God and of man?"
Duelling is, in truth, almost always the resource of the weak-minded, the vain, the vindictive, or the cowardly; and it is not right to ask society to be liberal in its allowances for the wrongdoings of its less worthy members. There are, nevertheless, cases in which persons have found themselves involved in duels under circumstances pregnant with extenuation in the eyes of even the hardest moralist, and such as warrant the executive, when the majesty of the law has been vindicated, and its authority recognised, in mitigating or remitting the punishment due to an acknowledged violation of the law.
The law of the land is better able to vindicate really outraged character and honour than may be imagined by many foolish hot-blooded persons, who give or accept "hostile messages." It is armed with ample powers of compensation and punishment, as may easily be ascertained by those who can satisfy it that they have been the victims of deliberate and wanton insult and injury. Little more than a year ago, one gentleman thought proper to write to some naval and military friends of another most offensive imputations upon his honour. When apprised of this, he instantly wrote to demand that his traducer should either prove the truth of his assertion, or unequivocally retract and apologise for them. Both alternatives were very contemptuously refused, on which the injured party brought an action for libel against his traducer; who, unable to justify, and unwilling to apologise, allowed the case to go before a jury. On their learning the true nature of the affair, and being reminded that they were appealed to as a jury of twelve gentlemen, to vindicate the honour of an unoffending gentleman, they gave such heavy damages (£500) as soon brought his infuriate opponent to his senses, and elicited an unequivocal retractation, and as ample an apology as could have been desired. A few instances of this kind would soon satisfy the most sceptical of the potency of the law in cases too often deemed beyond its reach, and of the effective reality of its redress in cases of wounded honour. Who could lightly esteem being solemnly and publicly branded by its fiat as a liar and a slanderer—its blighting sentence remaining permanently on record? He who would regard such a circumstance with indifference surely is not worth shooting, or running the risk of being shot by, or of being hanged or transported for shooting or attempting to shoot! If a person of distinguished station or character receive an insult or an injury of such a nature, as not to admit of being treated with silent contempt, it becomes his duty to society to set an example of magnanimous reliance on the protection of the laws of his country, and pious reverence for the laws of God. Against one thing, however, every one should be constantly on his guard—the entertaining and cherishing that false overweening estimate of personal dignity and importance, which predisposes too many to take offence, and then hurry to revenge it.