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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
be absurd—the duellist
think and feel 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
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 it would do no good.
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,”* If, then, he shall be found to have exercised this power in the punishment of officers for not fighting duels, our position will be fully proved. *
The intelligent reader must have been, at some time, struck with the mass of contradictions, which, in one shape or other, has been offered to the world on the subject of duels. Divines and lawgivers crying murder ;-commentators extolling the justice of laws which cannot be executed ;-historians & deducing effects which they call good, from causes which they call absurd; and lastly, the world at large, admitting all that can be said against duels, sometimes demanding sanguinary punishments, which they would shrink from seeing executed ; and sometimes allowing, that although they are shocking things, yet they are necessary «« in a certain rank of life.”
While the public mind is in such a chaos, it is almost hopeless to expect any speedy amelioration, either in the law, or in popular opinion. Yet the period of improvement may not be so infinitely distant, as at first sight we should be led to suppose.
The great principle of legislation, that the severity of punishment ought not to be so great as to shock the general feeling, is gradually toiling its way from the works of theorists (as they are called into the heads of practical men ; and, in the course of a few ages, these gentlemen may also be taught, that to visit with the same penalty the aggressor and his antagonist, whom he has forced into a duel, is not quite consistent with sound and enlightened maxims of justice ; and, what will probably have more weight, they may discover, that it is a species of legislation which cannot be carried into effect. In equally reasonable time it may be found, that what cannot be entirely abolished may be regulated. Suppose that after a duel was fought, the
+ See the verdict of a Court Martial, holden 1818, on charges preferred against Lieut.-Col. Abernethie, of the Marines, for neglecting to demand the " honourable adjustment” of a dispute; and the subsequent decision of the Prince Regent on that occasion. Blackstone.
law condescended to inquire into the merits of the dispute, and punish him who had provoked the outrage; is it not probable that fear of legal punishment, superadded to the danger of being shot, would prevent some of those aggressions from which duels arise ? Even the master of that most valuable accomplishment, the power of snuffing a candle with a pistol bullet, might shrink from such an investigation as this, which would naturally be followed
up with a severe penalty. Public feeling would offer no obstacle. The wretch who wantonly, or perhaps maliciously, puts a fellow-creature under the necessity of either suffering mental pain and degradation, or exposing his life to extreme danger, deserves no sympathy and would receive none. Nor ought the second, who assisted such a man, wholly to escape. To a certain degree he would be an object of public displeasure, and might therefore be visited with a punishment bearing some proportiou to that of his principal. Where blame fairly attaches to both parties, then let both be punished; but let the penalty have relation to the common feelings of mankind.
It is impossible to treat the survivor in such a duel as a murderer, but he ought not therefore entirely to escape. The law as it now stands resembles Thor in Jutenheim; his hammer was able to beat down rocks, but he struck at shadows and his real enemies laughed at his blows.
Much good would result from making it the duty of the coroner, to hold an inquest after every duel, whether the consequences had been fatal or not. When a pistol is discharged, accident alone determines what shall be the consequence: the guilt of the party is exactly the same, whether the ball take effect or not. It is true, the parties might, according to the law as it now exists, be prosecuted, and since Lord Ellenborough's Act, they are liable to be capitally convicted; but it has not been made the particular duty of any public officer to see the law put into execution, and consequently nothing is done. Since, however, a great and perhaps the greatest part of the efficacy of punishment results from the certainty of its infliction, it is evident that every temptation to violate the law, from the hope that accident will be favourable, ought to be cut off.
In the present state of society, the total abolition of duels cannot, as experience abundantly shews, be effected. A speedy, certain, and reputable method of punishing insults must first be discovered and established. At present with respect to those injuries, society is in a state of nature. The right of private war has only been surrendered, because the individual is better protected by the arm of the law, than by his own strength. Whenever there shall be instituted a supreme court, to act as arbiter among nations, public war will for the same reason fall into disuse; or will only be made for the purpose of chastising a
refractory member of this great community: just as the police officers
may be said to carry on war against the criminals whom they apprehend. But as it would be preposterous to expect a nation to sit down quietly under its wrongs until such a court is appointed, so it is equally unreasonable to demand that private men should always refrain from redressing, by their own means, those grievances for which the law offers no remedy. By the plan which we have proposed the balance of pain would be fearfully against the aggressor: and that noxious animal, the bully, must soon become extinct. At present he stands on equal ground with his antagonist; or rather, from having made a just estimate of the worthlessness of his own life, he is aware that the stakes are in his favour. Add to this, he generally has no better occupation for his time than to become very expert at his weapons. In England these creatures are happily become rare ; but in Ireland (nothwithstanding its boasted exemption from venomous animals) in France, in the United States, and in our own colonies, the breed still flourishes; at once the terror and the disgrace of civilized society,
M. D. H.
THIRTEEN YEARS OF AGE.
Καίτοι σε και νύντύτό γε ζηλούν έχω,
The smiles, thy talk, thy aimless plays,
So beautiful approve thee,
I cannot choose but love thee:
Is like the summer air,
To plant a soft kiss there.
Thy steps are dancing toward the bound
Between the child and woman;
And other years are coming ;
More precious to the heart; But never can’st thou be again,
That lovely thing thou art !
And youth shall pass, with all the brood
Of fancy-fed affection;
And waken cold reflection :
O’er pleasures unreturning,
Unto the cares of morning.
Of joyous expectation,
The freshling of creation !
Her early lamp with gladness,
Her comforter in sadness.
Smile on, then, little winsome thing!
All rich in nature's treasure,
Of self-renewing pleasure.
Of mirth, till time shall end it; 'Tis nature's wise and gentle will,
And who shall reprehend it?