“A Requiem Upon Duelling.” Arthur Pollock, 1848-9.

Transcription by Keith Farrell, July 2017. Transcription © Keith Farrell, 2017.

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Table of Contents

Transcription Notes ...... 1 A Requiem Upon Duelling. Part I...... 2 A Requiem Upon Duelling. Part II...... 12 A Requiem Upon Duelling. Part III...... 21 A Requiem Upon Duelling. Part IV...... 32 Bibliography ...... 42

Transcription Notes

I have endeavoured to reproduce the original text and its formatting as accurately as possible. The page numbers in the original publications are indicated in square brackets, such as [267] for example. The transcription process was to run the original sources through Optical Character Recognition software to create a rough gist of the text, then to go through it by hand, comparing the OCR text with the original text and correcting any errors.

1 A Requiem Upon Duelling – Part I.

[267]

A REQUIEM UPON DUELLING.

No. I. “Beware of desperate steps: the darkest day— Wait till to-morrow—will have pass’d away.”

ON Tuesday, the 18th ultimo. Lieutenant Munro, late of the Royal Horse Guards, was released from custody; having terminated his sentence of twelve months’ imprisonment in Newgate, for shooting and slaying his brother-in-law, Lieut.- Colonel Fawcett, of the 55th Foot, in a duel fought at Camden Town, on the 1st of July, 1848. The particulars have long and painfully agitated the public mind; and there is but little doubt that from the deep interest of the case, and the meeting of several other causes, it will be one of the last deadly examples of a greatly contested form of settling disputes of honour. Indeed, notwithstanding the principle exists in full force, this practice of combat—so long prevalent through the upper orders of society, yet, declared to be contrary to law—though not at present absolutely exanimate, is so severely scotched that e’en weans may “haud oot their fengers laughin” with impunity. The occasion calls us to take a cursory, and we hope a strictly impartial review of the pugna duorum, by way of chaunting its requiem, or rather prosing its peaceful rest. We hope also to shew the urgent necessity of providing an efficient substitute, which shall curb the insolent, check the flippant, awe the profligate, and insure good [268] order to the community; for the accomplishment of which the law of the land has proved itself to be inadequate. The task before us, in the present tone of feeling, is certainly rather obnoxious; but it shall be honestly executed, as well to shew the past state of duelling, as to suggest the satisfactory regulation of a principle which is not easily controlled by civil institutions. Our own inner sentiments are decidedly at enmity with the practice, and we would never countenance an aggressor; but the millenium has not yet arrived, and as the rule of our conduct and character must still—in spite of ordinances to the contrary—be regulated in conformity with the opinions and prejudices of those among whom we are placed, it must be viewed as an objectionable but unavoidable alternative of self-defence. We, at once, acknowledge that the crime of extreme duelling is not only destructive of human life, but also that it inflicts extensive calamity and lasting misery on the friends and relations of the perpetrators; and we should never view the mere habit as constituting an essential part or parcel of true honour or real courage. Under these confessions we shall proceed, but in our course, treating merely with human considerations, we shall not examine the obligations on religious grounds; since we are satisfied that no one in arraigning or defending its tendency ever supported the idea that its practice is compatible with the spirit and precepts of the Holy Gospel, any more than is war in general, or any other uncharitableness. Nor are we either morbid enough, or sufficiently enthusiastic to assert that—

2 A Requiem Upon Duelling – Part I.

“Only he Is great and honourable who fears the breach Of laws divine and human, and foregoes Even reputation, rather than infringe The Christian’s duty:” for, however irrational duels may be, and however contrary to the animus of religion, fighting does not appear to be absolutely forbidden by the Scriptures; except by pressing certain texts, and straining them into the service. And certainly, he who would shelter himself on such an occasion behind the seven-fold shield of Religion, ought to be a most correct observer of its forms and precepts on every other occasion: nor is it at all easy for the most squeamish anti-duellist to separate the Divine injunctions against revenge from national wars, and yet retain them in cases of personal conflict. The advertising philanthropists, however, will assure you that they (they!) are bent on preserving also the quiet of the world, and would fain persuade Britannia to disarm herself as an example to other countries. Ma ‘spetta un poco. Surely none but the vilest of the Adullamite clan would not hail universal peace among nations with ecstacy; yet who, except the pseudo-economic driveller, and some dafter classes, supposes that such a blessing can be possible under existing circumstances? Believe us, dear reader, that the most sovereign preventive of quarrel is in the being well prepared for it: and it is owing rather to the counsel of those veteran soldiers, Wellington and Soult—that the dreadful evil of war is not again desolating the world, than to the efforts of the burly squad of subscription orators. Unhappily the terrible bane has existed in all ages and countries, notwithstanding the councils of the wise and deprecations of the worthy. [269] We ought here to notice another error among the well-meaning advocates of universal quiet, who insist that duelling can only be excused under an absolute Government, which annuls or alters laws at pleasure. Full of this cut-and-dry dream, Mons. Salaville considers it desirable to inquire why those who enjoy political liberty reject the odious practice, preferring a respectful reference to the laws, or a magnanimous forgetfulness of insults merely personal? This ‘cute question he answers thus—”It is because they have loftier interests to consult than those which concern only the individual; namely, those which belong to justice, and to their country. So long as those objects of their veneration are treated with due deference, they would have no feelings for private offences, no sensibilities exasperated to frenzy in the cause of self.” Ah, England! and still more, ah, America! there Mons. Salaville has you! All good men unite in decrying appeals to deadly arms, as un-christian in spirit; and every impulse of the finer feelings teaches that they should ever be avoided, if compatible with honour and justice. But, when our over-puritanical critics dwell so complacently on the virtue and propriety of pagan Greece, and Rome, in having had no Wager of Battel, we are taken aback with the reckless intrepidity of assertion, and the visionary tendency of their views. What! would they really exchange the accidental encounter of insulted sensibility, and the occasional calling of the ruffian to order, for the domestic inhumanities, the butcheries at games, the systematic homicides, and the wholesale slaughters of gladiators, which delighted those

3 A Requiem Upon Duelling – Part I. heathens, female as well as male? Would they restore the impunity of those classic times to the slander, the invective, the lie, the hurled missive, the kick, the blow, which then wantoned without staining either feelings or character. Besides, some of their rencounters were mightily like duels, colour them as we please; and there are sundry “callings out” of those days, which are actually on record. To be sure, the stakes were rather greater than when the raffish exhibition of squabbling shop-men took place at Wimbledon, the other day. Marc Antony, when he had lost his all, sent a message to Augustus, challenging him to single combat at a given time and place; but as the challengee returned only a cool answer anticipating the event, poor Antony sought refuge in suicide. By the way, this answer, advising the challenger to choose some other method of dying than by duelling, must have been framed according to a formula in such cases provided; for nearly the same words were employed by Antigonus when he replied to the hostile message of Pyrrhus by Metellus on receiving a challenge from Sertorius, and by Marius to the Cimbrian king’s defiance. The word duel or duello, is derived from duellum, which was used in dog-latin, duorum-bellum; and it signifies the personal combat of two parties agreeably to stipulation, in consequence of a cartel or challenge. This form was used as well in criminal as on civil occasions, and was waged for the maintenance of character and rights. The origin of the practice is doubtless to be referred directly to the single combat, which obtained among all warlike people, even in the earliest ages; as well as to the trial by battle, which was countenanced by the laws of the Huns, Suevi, Vandals, Goths, and other northern nations of Europe. In the days of chivalry, the duel was the animating principle of every [270] one who valued his reputation; and physical prowess was the boast and glory of the times. Meanwhile, the judicial combat, or formal wager of battel between two principals, or their champions, for the trial of some doubtful cause or quarrel—a jurisprudential system in which the solemnities of religion were united with the administration of secular justice—was solemnly recognised by the legislature. In the preliminaries of this proceeding, by a mode of divination for the discovery of the truth, the accuser first swore point-blank to the truth of his accusation, whereupon the accused gave him the lie direct: upon this each of them threw down a gage, or pledge of battle, and were then detained in custody till the day appointed for the contest. If either of them fled after this, it was even worse than crying recreant or craven on the field; for he was at once declared infamous, and deemed to have committed the crime in question. When the field was taken, it was implicitly believed that God would declare for the right, and nerve the just arm. It was assuredly a blasphemous error to expect that the omnipotent Eus Entium would, when thus flippantly called upon, condescend to work a miracle in favour of the mortal wight thus accused: but though this must be deemed presumptuous in the highest degree, yet the custom was, perhaps, more beneficial to society than a state of opinion which altogether denies Divine interference and control in worldly affairs. The “wager” was only finally abolished by statute 59, George III., ch. 46., when the public had just been startled, in its having been resorted to by one Thornton, the presumed murderer of poor Mary Ashford, in 181S. From the practice of judicial combat, emanated that of the modern extra-judicial duel; which, strictly speaking, may be considered as having been introduced into

4 A Requiem Upon Duelling – Part I.

England about the beginning of the sixteenth century. It is defined as a hostile meeting between two individuals, in consequence of an injury or insult given by one to the other; or, according to the learned Selden—”the bodily opposition of two combatants, both aiming at victorious success.” This adventure was for the purpose of wringing the amende from the person affronting, for the satisfaction of the person affronted; still this conclusion was not at all a necessary consequence, since accident frequently turned the tables the wrong way, the guilty and the innocent—the injurer and the injured, being all placed upon a seeming equality of offence and defence. Many a slanderer has certainly been compelled to swallow his words thereby; but it must be confessed, that the result of a duel in general, proves little for or against the claims of the combatants; it proves merely that they have fought. But the custom, however inconsequential, certainly nourished an elevated tone of feeling, and the code of honour, although of barbarian origin, has long formed a powerful protection of the weak against the strong, and the readiest barrier against insolence and oppression, especially in those rude ages in which it rose. Society is actually under very great obligation to a principle which has so well regulated the body politic; for being governed by public opinion, instead of individual feeling, however, is sometimes more powerful than virtue, of which it often supplies the place. So far from this feeling being liable to paroxysms of turbulence or prejudice, it is the very safeguard of peace; as hath been sung: “Honour’s not captious, nor dispos’d to fight; But seeks to shew what’s wrong, and do what’s right.” [271] Mais, en avant! Even in its best days, the consequences of duelling involved a great solecism. It is expressly derived from those feudal times when the turbulent barons, or chiefs of clans, refused to acknowledge the authority of any general law or rule of justice; and numerous recorded instances afford evidence that, in its operation and end, it was nothing less than setting the common course of legislation at defiance, and starting individual caprice agninst the usages and compact of civil order. It was therefore an erroneous, but often generous mode of seeking redress, that was inconsistent with established forms; and so explicit is the law of England on the subject, that we cite Blackstone, in defining malice prepense:— “This takes on the case of deliberate duelling, where both parties meet avowedly with intent to murder, thinking it their duty as gentlemen, and claiming it as their right to wanton with their own lives and those of their fellow-creatures, without any warrant or authority from any power, either divine or human, but in direct contradiction to the laws of God and man; and, therefore, the law has justly fixed the crime and punishment of murder on them, and their seconds also.”—Vol. iv. p. 199. Now all this is pretty dear, very sharp, and of course very proper; but it would be somewhat more tolerable were the said law of the land as notorious for justice as it is for formality, and for perverting truth by systematic fiction, as well as assigning improbable qualities to the acts brought before it. Mats helas! ‘Tis a strange world we live in, and we have only to grin and bear with our monstrous mass of legislative enactment; albeit, as we shall presently shew, they are not an available remedy for the reparation of personal affronts, still less for wounded sensibility, impeached

5 A Requiem Upon Duelling – Part I. honour, and some of the gravest wrongs of social life. The question merits a deeper investigation than is usually bestowed upon it, for while one party glozes it over, the other as unwarrantably attacks it stock and fluke. It is truly a matter of concern that satisfaction, as the phrase is, has frequently had to be extorted from a very scoundrel, or from a practised murder-master, by putting a deadly weapon into his hand, and standing a contention with him, life against life, upon a presumed equal chance. And even in meetings caused by unequivocal conduct, the decision of the controversy, when fatal, seldom fails to produce distress and grief on one side, and unavailing regret and disgrace on the other; for the event does not always accord with the ends of either equity or justice. Such is the probable consequence of accepting a message: but a silent forbearance of provocation has too often encouraged arrogance, and the manly refusal of a challenge—which ought in general to be presumed as no slight test of conscious rectitude—may have very different motives imputed to it. The naval or military officer here encounters the horrors of a very perplexing dilemma; and hundreds who condemn the code of honour, must submit to it; for it requires a stout heart to resist its bonds. Thus Colonel Thomas, of the Guards, who was killed in a duel with Colonel the Hon. Cosmo Gordon, in 1783, knew his error and abhorred it; for the night before the meeting took place, he added as a codicil to his will—”In the first place, I commit my soul to Almighty God, in hope of his mercy and pardon for the irreligious step I now (in compliance with the unwarrantable customs of this wicked world) put myself under the necessity of taking.” Yet this was a murderously protracted affair, [272] nor did he fall till the third round; and even then he was a victim to spurious excitement. “Honour’s a mistress all mankind pursue; Yet most mistake the false one for the true.” After this principle had become recognised in the higher circles, the forms of duel were closely studied, in order to establish a comparative fairness of combat; still, under the most rigid of its statutes, there is too great a tinge of the Macchiavellian maxim—”that stratagem may be met with stratagem without any breach of honour” for our taste. The Spanish and Italian authors reduced the codes into a formal digest, della cavalleresca, in which almost all the possible cases of offended honour were considered and stated; and the adequate satisfaction for each was precisely ascertained. Where the duellist was unversed in proceeding secundum artem, he fought by book; and Caranza was the great authority at the close of the sixteenth century, a season of much pugna duorum excitement. Fletcher ridicules this author; and Ben Jonson cites him thus—”A most proper and sufficient dependance (the occasion of quarrel), warranted by the great Caranza.” Montaigne asserts that we give ourselves the lie, to excuse the lie we have given to another; but the latter practice was held in the most odious and unworthy light. In the aforesaid digest, there are no fewer than thirty-two sorts of lies distinguished, with the pains and penalties incurred by each on utterance. Shakspeare, whose eye was everywhere, makes Touchstone “quarrel in print, by the book and he thus humourously makes that clown rally the formalities:—

6 A Requiem Upon Duelling – Part I.

Jaques.—But, for the seventh cause: how did you find the quarrel on the seventh cause? Touchstone.—Upon a lie seven times removed:—Bear your body more seeming, Audrey:—as thus, sir. I did dislike the cut of a certain courtier’s beard; he sent me word, if I said his beard was not cut well, he was in the mind it was. This he called the Retort courteous. If I sent him word again it was not well cut, he would send me word, he cut it to please himself: this is called the Quip modest. If again, it was not well cut, he disabled my judgment: this is called the Reply churlish. If again, it was not well cut, he would answer, I spake not true: this is called the Reproof valiant. If again, it was not well cut, he would say I lie: this is called the Counter check quarrelsome; aud so to the Lie circumstantial, and the Lie direct. From this and other sarcasms being put into clowns’ mouths, it is evident that our bard despised the contentious bullies of his day, most of whom were probably the blustering braggarts so aptly termed paper- tigers, by the Chinese. He makes another clown tell Desderaona, that to say a soldier lies, is stabbing;1 and, alluding to the frothy tenor of [273] the altercations, Mercutio exclaims—”Thou! Why thou wilt quarrel with a man that hath a hair more, or a hair less in his beard, than thou hast. Thou wilt quarrel with a man for cracking nuts, having no other reason but because thou hast hazel eyes. What eye but such an eye, would spy out such a quarrel?” But the habit of only observing and ridiculing the palpable abuses of duello, seriously injured the cause of amendment, by making the million believe that the whole custom is a needless farrago of nonsense and crime. The chance-medleys and absurdities of this field are assuredly strange and rife, and, but for some of them now and then terminating fatally, would excite no other feeling save that of contemptuous derision. A readiness to fight upon any and every slight occasion, is rather indicative of recklessness than of honour or courage: and as such a spirit frequently flows from the fear of being thought afraid, it is then but a spurious counterfeit of true magnanimity. The great eccentricity which hath been manifested in these affairs, has also been a means of veiling their more fatal bearings. The Rev. Mr. Gilpin tells a story of a veteran sea-captain, who, on being challenged, sulkily told his antagonist, that he had had fighting enough in his time, and was now quite weary of it: “but if,” said he, “you are determined for action, we must each take hold of the corner of a handkerchief, and so fire hand to hand. I cannot now fight in any other way, for I am

1 It is remarkable that Shakespeare’s noble contemporary, Sir Walter Raleigh, who, besides his martial capacity and vigour, was a philosopher, historian, and poet—thus uses nearly the same expression:— “So when thou hast, as I Commanded thee, done blabbing; Although to give the lye, Deserves no less than stabbing; Yet stabb at thee whose will, No stabb the soul can kill.”

7 A Requiem Upon Duelling – Part I. an old man, with a shaking hand; and if I do not come to close quarters, I may miss my mark.” This terrible mode of duello, pronounced in an awfully deep voice, brought on a short conference, which ended in peace. On another occasion, the skipper of a South-sea whaler was challenged by a French officer, and had, of course, the choice of weapons; on which, he equipped himself with a formidable harpoon. At this unusual apparition, the Frenchman shrugged up his shoulders and looked blank; but when the stalwart skipper roared to his mate, who attended as second, “Here! catch hold of the line, and stand by to haul that fellow in when I strike him,” he apologized, rather than encounter so novel an instrument of death. Still more ridiculous was the affair between Grandpre and Le Pique, at Paris, in 1808; these astute aeronauts having mortally quarrelled about an actress of equivocal reputation, challenged each other to fight in air-balloons, thus carrying the principle to the height of folly. After the glorious defeat of the Armada, and the sacking of Cadiz, duelling acquired full force and fashion; insomuch, that it became necessary for officers to “flesh their swords,” in order to stand well with their brethren, and become their station. On this point, let us hear the grave and sententious Fynes Moryson, who, writing in the days of the British Solomon, says, “let me adde one thing of corrupt custome in Englande, that those who are not groune menne, never have an opinion of their valour, tille in their youthe they have gained it with some single fighte, which done, they shall ever after live free from quarrels.” A ludicrous story illustrates the assertion of old Fynes. Colonel Guise, on his passage to Flanders, observed a very youthful officer who was in the vessel with him; and, noting that he was a raw gulpin, kindly took care of him to Antwerp. The young fellow was soon told by his larking companions, that he must signalize himself by fighting some man of known courage, or else he would soon be despised [274] in the regiment, and sent to Coventry. He replied, that he knew no one but Colonel Guise; and from him he had received great obligations. That made no difference, they said, in these cases; the Colonel was the fittest man in the world, as every body knew his bravery. Soon afterwards, therefore, the green- horn addressed Guise as he was walking up and down in a coffee-room; and began, in a hesitating manner, to tell him how much obliged he had been to him, and how sensible he was of his kindness. “Sir,” replied Guise, “I have done my duty by you, and no more.” But, Colonel, added the other, faultering, “I am told that I must fight some gentleman of known courage, and who has killed several persons; and that—“ “Oh, sir! “ replied the Colonel, “your friends do me too much honour; but yonder is a gentleman who has killed half the regiment,” pointing to a fierce-looking swarthy man, who was sitting at one of the tables. On this, the gulpin approaches the person thus described, and tells him he is well informed of his bravery, and for that reason he is under the necessity of calling him out. “Who, me, sir?” demanded the gentleman, in reply, “it’s more in my way to be called in, for I am the regimental Apothecary!” Some fatal duels are on record, on apparently nearly as light premises; but this is a most difficult point to decide upon, for it is only the wearer that knows where the shoe pinches most. In 1748, one George Timewell, Commodore Mitchell’s secretary, was tried at Deptford for shooting and slaying Captain Gregory, commanding the

8 A Requiem Upon Duelling – Part I.

Folkstone, of forty guns, when he was acquitted of the murder on account of the provocations he had received; but he was sentenced to be imprisoned for the misdeameanour in the Marshalsea for two years, and to be rendered incapable of ever again having an employ in the navy. And this catastrophe was all because Gregory disliked the cut of a swansdown waistcoat, which the secretary persisted in sporting on the quarter-deck; and for which act the Captain “shoved him off the said deck.” It is told of Gregory, when he was a young man, he was ordered by the Port Admiral to apologize to an officer to whom he had been very rude: whereupon he thus obeyed the command—“Sir; I called you a coward, ‘tis true, and am ordered by the Admiral to make you an apology, I am sorry for it.” In our own day, Colonel Montgomery of the Guards, and Captain Macnamara of the Navy, both high-minded gentlemen but practised duellists, were riding in Hyde Park, when their two dogs quarrelled; and that of Macnamara being the strongest, triumphed. On seeing this, Colonel Montgomery hastily but imperatively exclaimed, “Call ofi your dog, sir! I’ll knock him down!” The captain replied, “Have you the impudence to say that you’ll knock my dog down? You must first knock me down.” The result of the altercation was the death of the colonel. We ourselves were once employed as a second in an awkward but arrangeable squabble between two spirited officers respecting a potato! But on such occasions, the dependance, or ground of quarrel, is only the spark: it is the point of honour which blows up the flames. In France, this pernicious evil had been suffered to a very serious excess; and the combat was so frequent in the middle of the sixteenth century, that historians designate that age, as l’époque de la fureur des duels. From Sully’s Memoires it appears, that between the years 1589—when Henry IV. ascended the throne—and l607, no fewer than 4000 [275] French gentlemen had lost their lives in these conflicts which was at the rate of eighteen per month. Henry IV. applied himself, although late, to correct the practice by severe laws; and in the beginning of 1609, having assembled the constables, marshals, and principal peers, he swore in their presence not to pardon any man soever who might violate his edict; and then he made the lords swear to the like observance of it. But after all Henry, in his easy and ill-advised good-nature, never could actually find it in his heart to punish this offence. Though, on being urged by the wise Sully, he pretended to set his face against duelling, he really thought it tended to foster a warlike spirit among his people. And, some time after passing the edict, when the chivalrous Crequi requested his permission to fight Don Philip of Savoy, “Go,” said he, “and if I were not a king, I would gladly offer myself to be your second.” Hence caprice and vanity, as well as excited passion, imposed the necessity of still “calling out;” and the edicts were consequently unheeded. Such indeed was the contagion, that Montaigne declares he verily believes, “if three Frenchmen were put into the Lybian Desert, they would not be a month there without quarrelling and fighting.” Lord Herbert wrote from the court of Louis XIII. that there was scarcely a Frenchman of note, or one moving in good society, who had not killed his man in a duel. Richelieu worked at the repression of this murderous passion, from the circumstance of having had a brother stabbed to the heart in defending his (Richelieu’s) character; and in his Testament Politique has a chapter entitled Des moyens d’arreler les Duels. This opened the way to the edicts of Louis XIV which were despotically severe, but breathing a most insulting contempt

9 A Requiem Upon Duelling – Part I. of all persons “of ignoble birth and who have never borne arms, yet are insolent enough to call out gentlemen to fight:” and in case of death or serious wounds resulting therefrom, he sentences “such ignoble and low-born creatures” to be hanged and strangled, and their goods confiscated. These laws, most offensive to the great mass of the French people, continued in vigour till the fall of the old monarchy; after which, especially in the Napoleonic days, the duelo resuscitated. In our own country, this objectionable practice, although woefully prevalent, never attained to such a deplorable degree of frenay as in France. It seems to have been carried to its greatest excess in the reign of James I. and the two Charles’s, being resorted to not only by the upper classes, but amongst the lower orders. It was therefore that Bacon, in endeavouring to repress duels, hopes that the great would think it time to leave off the custom, when they find it adopted by barber-surgeons, and butchers; and he declared his determination not to make any distinction between the coronet and a hatband in the courts. He considered that the loss which the nation suffered by the destruction of these persons in private and insignificant quarrels, would, if adventured in the service of the realm, be able to make the fortune of a day. With respect to the causes of it, he pronounced the first motive undoubtedly to be a false and erroneous imagination of honour and credit; upon which account King James, in his proclamation, called them bewitching duels. “For if one judge of it truly,” says Bacon, “ it is no better than a sorcery, that enchanted the spirits of young men that bear great minds with a false shew—species falsa—and a kind of satanical illusion and apparition of honour against religion, against law, against moral virtue, and against the precedents and examples of the [276] best times and valiantist nations.” An Attorney-General, who kept his weather-eye upon the King, could not say less than this. But though Bacon could veer and haul upon some points, he was truly a trump in all the graver matters of moment. A certain fencing-master of the name of Turner, who trained young duellists in the art of murder, unfortunately ran his foil, during an assault, into one of the eyes of Lord Sanquhar, a Scottish nobleman, and a follower of King James. Turner made every possible excuse for so distressing an occurrence, and Sanquhar affected to forgive him. Some years afterwards he visited the court of Henry the Fourth of France, when this affable prince asked him how he had lost his eye. Sanquhar was embarrassed by the question, and with some hesitation replied, “By a sword wound from a fencing-master,” blushing as he acknowledged it. The king, forgetting his assumed character of an anti-duellist, inquired, “And does the man live?” This expression sunk deep, and rankled in the nobleman’s mind, and from that moment he formed the resolution to rid himself of the obnoxious cause of his misfortune in any manner. On his return, burning for revenge, yet disdaining to sacrifice his victim with his own noble hands, he hired two ruffians who assassinated Turner in his lodgings in Whitefriars. The working murderers were taken, but the lordly scoundrel had fled, and £1000 reward was offered by proclamation for his apprehension. Trusting to his sovereign’s personal regard and partiality for the Scotch, and having for a mediator at court the Archbishop of Canterbury, he at length surrendered himself. But all intercession was vain: Bacon bestirred himself actively in the prosecution; Sanquhar and his accomplices were condemned, and he

10 A Requiem Upon Duelling – Part I. was hanged on the 29th of June, 1612, upon a gibbet erected in front of Westminster Hall. Duelling declined greatly under Cromwell, but revived with unwonted ferocity in the profligate times of Charles the Second. It was then that the Duke of Buckingham—a Royalist, and a married man to boot—having shamefully seduced Lady Shrewsbury from her husband, was challenged by the latter; and the meeting took place. The Duke was attended to the field by Captain Holman and Sir J. Jenkins: and the Earl of Shrewsbury was accompanied by Sir J. Talbot and Lord Howard. According to the custom of the day, the seconds also fought each other. The combat on both sides was long and desperate. Buckingham ran Lord Shrewsbury through the body; Sir John Talbot was severely wounded, and Jenkins was left dead on the field. Buckingham and the other seconds were only slightly wounded. It was truly a demoniacal scene, the acting of which now would be impossible in any part of Europe; and even its bare recital excites the most unqualified disgust. During this murderous conflict, Lady Shrewsbury in a page’s attire, was holding Buckingham’s horse in a neighbouring thicket, to facilitate his escape in the event of his having killed her husband: and it is generally believed, that the atrocious wretch had not only been most anxious that the meeting should take place, but actually slept the same night with her paramour, in the very shirt stained with the blood from the wound he had received. The worthless monarch, in spite of every remonstrance from the Queen, received the Duke with open arms; and it would puzzle a Philadelphia lawyer to pronounce which was the worst—the King, the Favourite,or the Courtezan. (To be continued in our next.)

11 A Requiem Upon Duelling – Part II.

[352]

A REQUIEM UPON DUELLING.

No. II. “Am I to set my life upon a throw Because a bear is rude and surly? No— A moral, sensible, well-bred man Will not insult me, and no other can.”

HERE the meek and non-combatant Cowper asks a question as a home thrust, and then very triumphantly appends his own reply as a non-sequitur: but assuredly his axiom relates rather to vulgar, or even loathsome brawling, than to the ruffles of excited sensibility, and alludes to a class with whom no man of principle ought ever to be involved. About that time, however, duelling was written against by able moralists, and preached against by many divines: yet it is rather the gradual advancement of society in general, and the good sense of the best naval and military circles, which has most discountenanced the barbarisms of a practice not entirely suppressible. Still, it must be conceded, that custom has been most tyrannical, and has here and there dealt on the services with peculiar severity. Indeed, that officers, whether of the land or sea department, may be more sensitive of offence than their civilian compeers—notwithstanding the stringent restrictions by which they are peculiarly bound—is not to excite wonder, seeing that not only character as gentlemen, but also professional reputation is with them at stake; and, what might be a mere matter of temporary discussion in the civil classes, must with these be matter of prompt decision. In proportion, however, to this weight of vis compulsiva, is a delicate and guarded caution, a very prominent feature in the man of service. The declamations against duelling thus alluded to, are only to be considered as individual feeling; for the constitutional sections have proved themselves more wordy than working. Thus the law, as we shall presently shew, has been rather supine in its endeavours to prevent this practice; and we have seen, even to the present day, some of its professors calling each other out, standing and exchanging shots, and then returning to their respective courts scot-free. Look at the pretty example set by Alley and Adolphus, in 1816; and the shooting and slaying of Dr. Hennis by Judge Jeffcott, in 1833. Then, as to the church! Ecclesia abhorret sanguine was its motto, even when they handed over hundreds of unhappy wretches to the secular power; making the latter their cat’s-paw to fire, faggot, torture, wheel, and all imaginable modes of cruelty. They fulminated decrees against duelling, because it interfered with the plenitude of their own sway; and even the more earnest denunciations by the council of Trent, were too exaggerated and imperious to advance the work of repression by conviction. Yet it is certain that, as a body, the clergy have not made very strenuous exertions against such meetings; and they have even transacted business in that line for themselves. We will not look back to Ignatius Loyola calling out the Moor who denied the divinity of our Saviour, or to those squabbles for manors which constituted points [353] of honour between the abbots and barons of a former day; but certainly we may allude, en passant, to the

12 A Requiem Upon Duelling – Part II. duels fought by the Rev. R. Bate in 1770 and 1780, the killing of Lloyd Dulany by the Rev. Mr. Allen, in 1782, and the various brawls of others of the shovel-hat on record, as a disgrace to the sacred profession. When the once Rev. Horne Tooke wrote a challenge to his quondam friend, Wilkes, he received this laconic reply:—“SIR,—I do not think it my business to cut the throat of every desperado that may be tired of his life; but as I am at present High Sheriff for the city of London, it may happen that I may shortly have an opportunity of attending you in my official capacity; in which case I will answer for it, that you shall have no ground to complain of my endeavours to serve you.” Now this had been both pointed and piquant, but that Wilkes himself was a wight of rickety principle, and a notorious duellist, as witness his hostile affairs with Talbot, Martin, and Forbes. And yet, because Mr. Martin punished him with a severe wound, the Rads. of London were outrageous against the Secretary of the Treasury, although their idol had calumniated him as an insatiable, cruel vulture, and as “the most treacherous, base, selfish, mean, abject, low-lived, and dirty fellow, that ever wriggled himself into a secretaryship.” Nay, more, that very exemplary companion of Wilkes’s, Charles Churchill, then rated as a full and first-class poet, was at the pains to write his Duellist, in order to make Martin the despicable butt of the poem. It should, however, be noted, that during this supineness of the constitutional forces, the moral artillery we have alluded to had been plied with some effect, and tended towards a reduction of the evil. Steele, Addison, Swift, and other powerful writers, employed their pens in reprobation of duelling; and both argumentative reasoning and scathing ridicule were exerted to shew up its impiety and absurdity. From the days of the Taller, Spectator, and Guardian, the sense and wisdom of society was on the advance, insomuch that many evil customs have disappeared, like darkness before light. Our own times have received the benefit of this progression, and the decried custom in question, unless under circumstances of extraordinary provocation and injury, may be considered as abolished in good society. The system itself has been long acting so as to diminish and finally extinguish the necessity of its own application; and it has of late been mainly resorted to in instances where principle has been trod under foot, and wherein law, as at present administered, would be but utter mockery. Yet it is a lamentable feature of our own distance from perfection, that both in the courts, and in the field, violence may be carried to a tragic depth, and the guilty triumph. Sir Richard Steele deemed duelling a “madness which prompts us to decide our petty animosities by the hazards of eternity:” and he wrote an edict for King Pharamond (Spectator, 21st June, 1711), which might probably modify the practice; but as he did not entertain the extreme argument, its adoption would not obviate the necessity of an occasional appeal to the pistol. Indeed, Sir Richard himself was a singed rat; and though he penned Pharamond’s order, and denounced the duello in various papers, besides making Bevil convince his hot-headed friend, in the Conscious Lovers, of its unreasonableness, yet [354] was he obliged to accept a challenge, and run an officer of the Coldstream Guards through the body! But notwithstanding the wonderful social improvements thus made by the inevitable march of time and freedom, the press has lately been deluged with torrents of

13 A Requiem Upon Duelling – Part II. reproachful invective against strife of all kinds, in which cant and exaggeration obnubilate truth. These silly productions are fulminated by a very motley party, in which are included many people of good intentions, but narrow perceptions, intermingled with self-styled universal philanthropists, beetle-browed Pharisees, and salaried scribes. Yet the vice which they professedly wish to suppress, was already wearing itself out before their outcry was raised; and the conceited absurdity of their measures has gone far to resuscitate it from its throes. The sensible portion of the public must ever object to associations in morals, thereby substituting opinion for reason, and pledges for principles: still less ought they to suffer the intrusive advice of men whose wisdom is as problematical as their motive is questionable. In the instance before us, the favour is directed against a stricken reed: as well might those talkers get up a society—with paid secretaries, printers, writers, and publishers—for the prevention of another evil which has lately sneaked off of itself, namely, that of highway robbery. We can name a chairman for them. Our duty being to consider the subject under all its bearings, we shall proceed on a course in medias res. The usual defence of duelling is comprised under the consideration, that it is necessary in a certain false, but still existing, state of society; and that there ought to be some penalty to chastise, as well as terror to deter, certain offences not cognizable in ordinary courts. In other words, it is widely admitted that there are certain cases in which an individual may be compelled to take the law into his own hands, in order that those destroyers of domestic peace, over whom the legislature nods, should not be allowed to walk the course with immunity. And this dictum is still in imperative operation upon society, thus exposing every individual to its contingency: but the occasions which draw it forth are constantly under abridgement and regulation. Should this be a false view, it ought to be recollected that the community, in being the upholders of les régles de l’escrine, is at least as much to blame as the thoughtless votaries of the code. Our task is sufficiently onerous to have perplexed Rhadamanthus himself; still we do not scruple to repeat, that, however illogical in its argument, and barbarous in its practice, yet civilization stands indebted to the obnoxious practice. The darker times were full of profligacy, fraud, and every description of villany; and the licentiousness and violence of the powerful, would have been greater but for this summary check. Honour, where different from morality, is so entirely conventional, that it must necessarily vary with the varying conventions of different conditions, and successive times: it must therefore, of inevitable consequence, treat sensitiveness—personal and professional—according to the prevailing education and habits. Now through all the stages of its acknowledged rule, its continued deference to, and defence of, the weaker sex, has been productive of a general amenity of manner, highly cogent to the enjoyment of human life: and, but for judicial combat in the early mixture of liberty and [355] oppression which stamped the feudal system, Europe might have remained as stolidly enslaved as the Eastern Empires have done. Without at present questioning the postulates of any advanced propositions, we may look to facts for their consequences; a knowledge of right not always being a surety for a right line of conduct. Now, acknowledging the aforesaid obligations in full, we are also bound to admit Sir Roger de Coverley’s sage axiom, that there is much to be

14 A Requiem Upon Duelling – Part II. said on both sides. We apprehend the Duello will find it difficult to get clear of the charge, that it does not exclude the cardinal vices, that by it equity and honour are often caricatured,—and that, so far from the equalization of the combatants being insured, the inexperienced man often falls to the practised aim of the professed marksman. By such imperious fatality, besides a wife and children, perhaps, left to mourn their bereavement, the victim is, like Hamlet’s father, “Cut off even in the blossoms of his sin, Unhousel’d, disappointed, unaneal’d; No reckoning made, but sent to his account With all his imperfections on his head.” This is a salient point in the argument. The duel form of battle is mistakenly held to level all physical advantages between the combatants, and to set man against man in a meeting so utterly indeterminable by strength or courage, that to chance or some more inscrutable arbiter, must, of necessity, be left the issue and the verdict. By the currency and acceptance of such liabilities as these, it is argued that restraint on the impulses of passion or pride, and respect and consideration for the feelings of others, are habits necessarily engendered. The argument, however, is far from being conclusive, since a man, six feet high, may fire over the head of another who is four feet low, in his shoes, while he himself receives the levelled pistol-ball of the little fellow right in the abdomen. It once happened, that a pair of marine-officers, who had retained their talking faculties long after the lateness of the sitting had qualified them for binocular prospects, flared out into a mortal huff, and a challenge was the consequence. Now it so happened that one of these enragés, in spite of easy work and sleeping like a ground-tier butt, was one of that lean-kine kind, familiarly termed “herring-gutted;” while the person of the other, from faring like a cook’s mate, had run to slush, and pingui-dated out of all proportion. Here, therefore, there could be no just equality in pitting person to person: so the story runs, that the appellant thereupon proposed to mark out his own lank dimensions with chalk upon the waistcoat of the corpulent respondent, saying, that if he did not hit him between the lines, it should go for nothing. After all, the question is oftener one of strong feeling than cool or deliberate judgment: for though all good men must, oi course, abhor a reckless appeal to deadly combat, in venal cases, yet the power of it is a restraint over blusterers and ruffians in gentleman’s garb, but for which our wives and daughters had been exposed to gratuitous and insulting rudeness. It is a safe-guard which reaches where the law cannot, and arranges many matters of minor dispute most satisfactorily. Innumerable instances occur of explanations being given, and harmony restored, without parties going into the field at all; and even [356] when a case of extreme necessity actually occurs, neither the principals nor seconds contemplate either a blameable breach of the public peace, or the crime of murder. Much of this depends, however, on the experience of the parties, and their knowledge of what constitutes a proper concession. An erroneous distinction is too often attempted to be drawn between a written and a verbal apology, and has been the occasion of most serious mischief. A gentleman’s word should, at all times, be considered as valid as his signature; nor should a written apology ever be insisted

15 A Requiem Upon Duelling – Part II. on, unless where there exists an avowed necessity for sending it to some absent party concerned: and in that case it should not be refused, because no gentleman can object to state in writing what he is verbally willing to avouch. The manner of demanding it makes the whole difficulty; for a forced recantation, or eating of words, is ever as unpalatable as Fluellen’s leek. Another equally erroneous impression has been, that of the aggressor thinking it unbecoming in him to apologize or retract, until he has received his adversary’s fire; whereas genuine honour and manliness are conducive to the instant acknowledgment of a fault. With sensible seconds, mistakes or hasty expressions are readily explained, and matters mended smoothly. Once, on a business of this nature, we had ourselves to meet an officer who we expected from general repute, would have compelled his man to stand a shot; to our surprise and gratification, instead of the overbearing manner we had been taught to look for, he proved to be so acute and humane a reasoner that we very soon agreed upon amicable terms. But the ignorance and officiousness of some persons thus called upon, are both mischievous and disgusting. A messmate of ours was out as a friend to a party at the Cape of Good Hope, when the young combatants having fired at each other without effect, the opposite second, who was actually the compeller of the fight, stepped up to him with, “Suppose we make ‘em have another round!” There was more point in what amused the fleet at Port Mahon, in 1810. Two officers having exchanged shots without taking effect, one of the seconds then interfered, and proposed that the parties should shake hands; to this the other objected, as being a very unnecessary act, “for,” said he, “their hands have been shaking for some time!” These tremors often assail even the practised marksman, when juxta-posed to an antagonist,2 there being a material difference between firing at a target and at a foe-man. Thus Byron says:— “It has a strange quick jar upon the ear, That cocking of a pistol, when you know A moment more will bring the sight to bear Upon your person, twelve yards off, or so.” It will be seen that duelling is quite bad enough, even where its [357] strictest laws and formal courtesy are adhered to, but there are numerous instances where ceremonial, and even seconds, have been dispensed with, and the meeting thereby rendered a murderous transaction. Such was the fact when Lord Byron, in 1765, killed Mr. Chaworth in a tavern, for stating that “he had more game on five acres of his manor, than there was on all his Lordship’s estates.” The fight was with swords,

2 A most remarkable instance of panic occurred at Bordeaux, in December, 1811. In a duel between two merchants, one of the parties fell on the first fire, and the seconds immediately approached, supposing that he was mortally wounded. After a close inspection they found he had not been struck at all, his antagonist’s ball having glanced aside, and lodged in the trunk of a tree; but he was nevertheless dead; having, it is supposed, anticipated by bis terror that fate which he might otherwise have escaped. The other was wounded in the right arm.

16 A Requiem Upon Duelling – Part II. and foul play was strongly suspected, but as there were no witnesses, the Peer “got off.” This was coarsely satirized in a broadside account of the squabble, by the representation of a man in a court dress, running another through the body, and inscribed— “The beau’s frolic To cure the cholic.” But in 1808, for fighting in a room without seconds, Major Campbell was convicted of the wilful and felonious murder of Captain Boyd, both of the 21st Regiment; and for which he suffered a felon’s death. In the same year, a duel was fought at Gibraltar by two midshipmen of the Renommee frigate, commanded by Sir Thomas Livingstone, in which the gunner was their mutual and only friend. The parties exchanged shots, and one fell mortally wounded. Intelligence of this termination quickly reached the ears of the governor, who, much incensed, commanded the immediate presence of the gunner, and, on the arrival of the latter, demanded how he could stand by while two boys were trying to murder each other? “I assure you, sir,” rejoined the old seaman, “that I acted like a father to both of them.” The governor was doubly enraged by this reply, given with the air of a man who is firmly persuaded of the propriety of his conduct, and ordered the nautical second to leave his sight instantly, exclaiming as he retired, that he ought to be hung. The survivor, now a lieutenant of standing, was tried in the town-court for shooting his friend with a pistol, “value three shillings,” as the legal fiction ran, and acquitted. We once interrupted a meeting still more incongruous; for a party of three had landed in a cove near which we were walking, consisting of the two principals, and another who was to be second to both, and surgeon to either; and they were provided with a single pistol, having settled to draw lots for the first fire. These, however, are exceptions to the general rule, and are merely handed out to shew the abuses which have been engendered by temper and inexperience. In all regular instances, the strictest form is observed; and to carry out the many proprieties which the laws of honour really admit of, the person officiating as a second, should be possessed of temper and judgment. The principal having once officially referred to this functionary, he has no longer anything to do with the decision of the question till, if such a step be found necessary, his arrival in the field. The seconds, or “friends,” as they are technically designated, must be free from every impulse but that of performing their duty; and are to be satisfied by just reasoning, uninfluenced by the passion of the principals. Their first, and not the least delicate, duty is carefully but firmly to enter on all the intricacies of the negotiation, and ascertain whether it be a case for duel; for being the chosen and declared judges, they may also be considered as mediators and moderators. Such men may mostly bring about an amicable adjustment, if not always a reconciliation between the contending parties, [358] without even going to the ground; for real honour never disdains explanation. Should the seconds fail in their endeavours to keep the peace, they are viewed as guarantees for the fairness and equality of the combat; and their presence takes away a part of the ferocious character of the assault. But they hold a most responsible position; and as abettors of an unlawful act, they are deemed to partake of the guilt of their respective principals. This can hardly be objected to on

17 A Requiem Upon Duelling – Part II. recollecting that the olive-branch is almost in their grasp. Human life ought never to be sacrificed to misconceptions, punctilios, or differences of opinion; and no good seconds will allow of it. Cases of extremity under these conditions are rare indeed; and the qualified murder of the duello would never be risked, but in those instances where intolerable injury would meet with little or no redress among lawyers. Even in the letter of defiance, the patient second should see that the appellant uses such courtesy in his language, that room for explanation or extenuation, may be left open: and often the probings of his Ithuriel spear make the phantom of dispute vanish. This consideration revives a painful picture. In 1809, the brave and manly, but reckless Lord Falkland, a very distinguished naval captain, was killed by a Mr. Powell, because his lordship, with whom he was on terms of intimacy, had addressed him by a nick-name in a large company, at Steevens’s coffee-house, in Bond-street. According to etiquette, Mr. Powell fired first, and inflicted the mortal wound. Lord Falkland stood for above a minute in his position, and then threw away his pistol without discharging its contents. Now, here there was but a phantom of dispute! Those who register vows in heaven against fighting, ought at the same time to sanctify their conduct so as to be correct in their speech and demeanour; such should studiously avoid wilfully or wantonly hurting the feelings of any one; and more especially they ought to beware of exhibiting that arrogance so congenial to the exultation of cowardly impunity. Contumelious bearing, and provocations of every degree, have always been discouraged in armies and fleets, because their direct tendency is to interrupt wholesome harmony, and tamper with discipline. Thus, when Coeur de Lion issued his famous ordinances, on his voyage to the Holy Land, he ordered that “any one who shall reproach, abuse, or curse his companion, shall, for every time he is convicted thereof, give him so many ounces of silver.” Indeed, such irritating conduct has been repeatedly and pointedly decried by the ruling powers; and our present Articles of War, section xxiii., expressly say—“If any person in the fleet shall quarrel or fight with any other person in the fleet, or use reproachful or provoking speeches or gestures, tending to make any quarrel or disturbance, he shall, upon being convicted thereon, suffer such punishment as the offence shall deserve, and a court-martial shall impose.” The spirit of this is well expressed in the Duke of Wellington’s letter to General Stopford, from Lesaca, in 1818:—”It is certainly true, that private quarrels between officers are proper subjects for the investigation of a court-martial; but the complainant, in order to obtain a decision in his favour, must come with a fair case; he must not himself have been guilty of a breach of the general orders of the army, and of discipline; and his authority as a superior officer must not have been exerted against his inferior, against whom he complains, in order to enjoy the advantage of this [359] improper conduct; and above all, be must have refrained from the use of abusive and improper language and gestures.” And the same consummate soldier, had, in 1810, officially recommended the principle of adjusting the personal differences between officers, where it may be allowable, by private explanation; and in confirming the sentence of a general court- martial on a captain of the Royals, for using disrespectful language to his commander, the Duke expresses himself in these excellent terms. “The officers of the army should recollect, that it is not only not a degradation, but that it is meritorious

18 A Requiem Upon Duelling – Part II. in him who is in the wrong, to acknowledge and atone for his error, and that the momentary humiliation which any man may feel upon making such an acknowledgment, is more than atoned for by the subsequent satisfaction which it affords him, and by avoiding a trial and conviction of a conduct unbecoming an officer.” This is sterling advice, and will meet—under judicious friends—most of the imbreglios which casualty occasions; for it may be always remembered with advantage, that of honour the true is the fear of doing anything unworthy—the false, the fear of the so-called world. The latter feeling has led men to meet others of most questionable stamp, on very equivocal occasions; antagonists who are momentarily elevated by being treated as gentlemen. “If a scoundrel,” asked the gallant Admiral Tordenskiold, “fight with all the brave and honourable men in the whole world, does he therefore cease to be a scoundrel?” Notwithstanding these, and other axioms which readily present themselves, are so indisputable as to become mere truisms, an officer is most painfully placed on some occasions, and not unfrequently is he reduced to a choice—if choice it may be termed—between moral guilt and professional extinction. By the Articles of War, he is prohibited from sending, bearing or receiving a challenge; yet if, under certain circumstances, he should decline either, the laws of honour assume their prerogative, and he incurs the penalty of expulsion from their pale for cowardice or ungentlemanly conduct. It may be true enough, that in the face of the Mutiny Act, an officer has rarely been brought to a court-martial for either giving or accepting a hostile message; but it is no uncommon occurrence for a casting point to be made at those courts against him who has not so conducted himself. We have a recollection of several soft impeachments of this description, but the latest very remarkable proof of the existence of power to punish officers for not fighting duels, is in the well known verdict of a court-martial, holden in 1818, on charges preferred against Colonel Abernethie, of the Royal Marines, for neglecting to demand the honorable adjustment of a dispute. As a sample of the harmony of legislation in these matters, we may contrast this sentence, and the subsequent decision of the Prince Regent on that occasion, with the case of Lieutenant Franklin of the same corps; who, in May, 1790, received a judgment of the Court of King’s Bench, for sending a challenge to a superior officer—he was sentenced to a twelve-months’ imprisonment, and to find securities (200l.) for keeping the peace for two years. These anomalies point out the urgent necessity of an enlightened attention to the subject; for while the staid moralist and the prejudiced fanatic decry the meeting in arms, it is absolutely certain that such a step has not always been avoidable. It is an ungrateful measure; and there are few cases more lamentable than where a truly sensible and [360] honest man is compelled, from the tyranny of custom, and the mortification of that pride which we all censure but which we all possess, to plunge into an action which he may really despise and abhor. This feeling has led to some most improper meetings respecting points of service. When an officer suffers personal affront to be fixed upon him, for what he has done in the regular discharge of official functions, he is guilty of an absolute breach of duty to his country: and he who challenges one whom he is aware is not authorized to accept his defiance, has

19 A Requiem Upon Duelling – Part II. neither spirit nor common honesty in sending it. Such for instance was the violence exerted against Captain Johnston, of the 64th Regiment, in 1819; who was imperiously challenged, and actually fought two American naval officers—a champion and his second—for a circumstance which befel a third person, while Johnston was on the main-guard duty at Gibraltar. Yet even under all concessions, we would shew no mercy upon the parties in those rencounters which arise out of mere anger, or ungovernable waywardness. Anger, to say the least of it, is not an amicable passion, nor can its indulgence strengthen the judgment; still, in spite of homilies, it will exist secula seculorum, and should therefore be properly restricted by appropriate curbs; since few are so truly great as to remain unruffled under trying provocation. But our unmitigated scorn and disgust attend those discreditable doings wherein a noxious roué, priding himself upon never muddling away his money upon his creditors, foments animosity in affairs of gambling and strumpets. These have happily become more rare in England since the disuse of wearing side-arms, the decay of card-playing, and the all but extinction of Bacchanalian orgies; facilities for fights which, as every irritable man has just as much vanity as he wants understanding, offered too many temptations to pugnacity. Old Stubbes was indignant at the whole tribe of gents and dandies of his day, with “their rapiers, swordes, and daggers, gilt twice or thrice over the hiltes with good angell golde, or else argented over with silver both within and without.” Among these the professed duellist might be feared, but could never be respected; for the shadow of honour was often assumed by fellows who had absolutely forfeited the substance. It was men of this stamp which made Dean Swift say, in his treatise on Good Manners—“I should be exceedingly sorry to find the legislature make any new laws against the practice of duelling; because the methods are easy and many, for a wise man to avoid a quarrel with honour, or engage in it with innocence. And I can discover no political evil in suffering bullies, sharpers, and rakes, to rid the world of each other by a method of their own, where the law hath not been able to find an expedient.” The Dean of St. Patrick was followed on the same side by his contemporary, Mandeville, who, in the celebrated Inquiry into the Origin of Honour, asks, “Is it not somewhat strange, that a nation should grudge to see, perhaps, half-a- dozen men sacrificed in a twelvemonth, to obtain and insure such invaluable blessings as the politeness of manners, the pleasure of conversation, and the happiness of company in general; and especially a nation too, that is often so ready, so willing to expose, and sometimes to lose as many thousands in a few hours, without the least certainty that any future benefit shall accrue to her for such a loss?” (To be continued.)

20 A Requiem Upon Duelling – Part III.

[531]

A REQUIEM UPON DUELLING.

(Continued from No. 240, page 360.)

INIMICAL as we are to a recourse to this ordeal as a test only of dare-doing character, we cannot be so insensible to the still lingering prejudices of mankind, as not to admit that an individual who should decline a summons to that ordeal in an aggravation, would subject himself to imputations very obnoxious to a delicate sense of propriety. Here we are not alluding to the sensitive seekers of umbrage, so much as to those who are cursed with over-busy friends. Scandal-mongers, ear-wiggers, and other underhand fomenters of quarrel, are the pestilent nuisances of general and professional society, who, with their hateful whispers, malignant surmises, and distressing doubts as to what the world may think, and all that, precipitate the anger they affect to combat. These fellows are truly a bane; it is not easy to find expressions of reprehension sufficiently strong to censure their mischievous criminality. Nor is a foul-mouthed brawler less dangerous. Solomon said that an evil tongue wounds like a two-edged sword; nor could David himself brook the scandalous railing of Shimei. Quevedo, in his Vision of the Last Judgment, among the effects of the resurrectaon- blast upon the several orders of the dead, represents the Slanderer as disowning his own tongue. From the existence of such medlers and turmoilers, many an upright man, wanting, perhaps, only in moral firmness, has been impelled to defend even exaggerations of what may have incidentally escaped his lips, without that qualifying golden rule of Shakespeare’s, of timely interposing the conjunction if to avoid giving the lie direct, and to neutralize the strength and import of a dubious assertion. “Your IF,” said that great master of the human passions, “your IF is the only peace-maker; there is much virtue in IF.” Cavillers may object that Tristram Shandy hated this valuable monosyllable; but that objection is more than counterbalanced by the devoted partiality which the late Lord Chancellor Eldon exhibited for it, through his whole career. A melancholy instance of the fatal effect of such officious depravity occurred at Jamaica in 1814; and many of our readers will well remember the feelings which were then thrown abroad. On this unhappy occasion, Captain Hassard Stackpoole, commanding the Statira (not statira) frigate, an excellent officer, but of duelling notoriety, was shot through the lungs by Lieutenant Cecil of the Argo, who had scarcely ever handled a pistol before the meeting. Now it seems that the Captain, in spinning a yarn, was wont to indulge a little in the marvellous for embellishment, and one of his “twangs” having been told in a ward-room coterie, Cecil remarked that Stackpoole “had surely been drawing the long-bow.” This expression was wickedly, and, it is thought, not without the addition of some colouring matter, borne to the Captain, who loudly vowed vengeance on the utterer. Four years afterwards, the transitions of service brought both those officers into the same port: the Captain vociferated his great delight, and immediately sent his First-Lieutenant, C. S. White, with a demand for an instant apology for the “slanderous imputation,” imperiously insisting that the [532] said apology should be made in writing—“or you are sufficiently acquainted with Captain Stackpoole, to know that you cannot both

21 A Requiem Upon Duelling – Part III. exist in the same world together.” Mr.Cecil, “upon his honor,” had lost all recollection of the words imputed to him; yet, as a tale-bearer had affirmed that he used the expression, he would not disavow it. At the same time he desired it to be distinctly understood, that to any other officer in the service he would at once have apologised, but to him, who was currently reported to be so expert a shot, such a concession might be imputed to unworthy sources. A meeting was accordingly appointed, the parties took their ground at ten paces, and fired as nearly together as possible at the given word, when the lieutenant’s bullet took fatal effect, and Stackpoole fell dead on the spot. This termination was so unexpected, that all parties were absolutely astonished, including even the victim himself; for though some have averred that he expired without speaking, there is sound authority for stating that he faintly ejaculated—“I missed him, by G—.” The survivor, pained by his involuntary deed, sickened and died shortly after. Thus did the evil of ear-wigging—which, after Carlyle’s ponderous manner, may be termed the language of the Devil—deprive the Navy of two officers of acknowledged merit. Stackpoole indeed, from temper and habit, would have probably always walked on hot embers: for, among other unfortunate incidents, he had been a chosen friend and companion of that hair-brained duellist, Lord Camelford, whose pernicious bearing he imitated, though an excellent wife and the charge of a fine frigate in time of war, ought to have ballasted his mind. Poor Cecil obtained the death-vacancy which he had thus been compelled to make; but notwithstanding the Admiral’s attention in giving him the command of the Electra, and the kindness of everybody at Port Royal, among which the marked hospitality of the 18th Regiment (Royal Irish) was eminently conspicuous, he fell into hypochondria and wasted away. In this state of mental and bodily debility, being attacked by an insidious fever, he submitted to the “fell Sergeant” on the 24th of October, 1814, just six months after the death of Stackpoole. But let us mark how Camelford himself lost his life, ten years previous to the fall of his disciple, an action of which it might be said in reference to the preceptor— “E’en in his ashes live the wonted fires.” In plain terms, the event may be thus worded. Lord Camelford, once a Commander in the Navy, but who had quitted the service in a huff, was killed one dirty morning in a duel about a worthless prostitute. Having excited himself to the proper pitch for a “flare-up,” he, “face to face,” accused his quondam associate, Mr. Best, of being “an infamous scoundrel, a liar, and a ruffian!” Now the said Mr. Best—a medical man, often erroneously recorded as a Captain R.N.—and his Lordship had been sworn friends, and the insulted, though he felt that the language was hard, made earnest overtures to produce a reconciliation with the impetuous peer. Each advance, however, was rejected with stinging obduracy, and why? Because it had been rifely pronounoed that Best was the most consummate marksman in England! On this account it became necessary for the ex-Captain to place his body before [533] a murderous weapon; and it is singular that Best rode to the ground on a horse which he had won from the Peer, by firing at a mark, while the pistol used innocuously by Camelford, had been presented to him by Best. On this occasion, therefore, the well- known adage of Sophocles might be cited in illustration, namely, that the gifts of foes

22 A Requiem Upon Duelling – Part III. are fatal; as was anciently evinced by Ajax’s falling on the sword which Hector gave him after their challenge and meeting; and in Hector’s being dragged round the walls of Troy by the belt which Grenadier Ajax gave him in return. Such were the cause and manner of the fall of Camelford! Commencing his career in the Navy, there were many germs of promise; but coming in at the cabin windows, and undergoing the consequent indulgencies, he became a strange compound of extravagance, kindness, irascibility, and other moral attributes in their very extreme. Vice, however, so far overbalanced virtue, that he was a declared pest to society. Many and violent were the disputes in which he got embroiled, and repeatedly was he indebted to his station and connections for the palliative considerations he received. His rashly shooting Lieutenant Peterson in the dock-yard at Antigua, though shielded by martial law, assuredly was not conscientiously justifiable under the existing circumstances, since he had ample means of bringing the offender to punishment without becoming his executioner; and certainly a better officer would have scorned the action. It is not, therefore, very surprising, that so little sympathy was expressed at his untimely fate: as he had sowed, so did he reap. His life was a lesson, and its violent end—shot, and left weltering in the mire—was not inappropriate for one who, constantly quarrelling, plumed himself on pistol practice, and proudly declared that he would never retract a word which he had once used. Those who had benefited by his reckless and indiscriminate bounty, raised a voice which obtained a qualifying pity for his memory; but, at best, he was a licensed nuisance, and even when trumpeting his more taking qualities, it cannot be forgotten that— “The hideous master-passion in his breast, Like Aaron’s serpent, swallow’d up the rest.” Advancing civilization has certainly checked these enormous breaches of the peace; but it has also proved the inefficiency of the law to bring the civil, the social, and the divine influence into harmony. To be sure, in 1844, Her Majesty’s displeasure of duelling was authoritatively declared in Parliament, and a passage was introduced into the Articles of War in conformity with that declaration. This, however, is only in effect strengthening the manacles of those classes who are already shackled by the provisions of the same Articles, and conferring impunity to their civilian aggressors; for no legal redress was at all alluded to which could assuage the feelings of honour and sensibility. As we think that just notions of right and wrong cannot, and perhaps ought not, to depend solely on the administration of public law, so do we advocate the abrogation and amendment of certain offences tolerated by public opinion, rather than the attempt to abolish them by decree. Despots may often flatter themselves that they disperse happiness when they issue edicts; and he who would expend his energy in shewing [534] that such is not always the case, would merely spend his time in the elaboration of truisms. Now the Emperor of Russia is a noted decree-man and means to work wonders under every order he gives; but a sensible writer on Russia has recently observed—“The rigorous abolition of duelling has become as great a curse in society, and in the army, as its toleration in some other countries. The exceeding severity of the Imperial regulations on this point, has tended as rapidly to

23 A Requiem Upon Duelling – Part III. smother the last germs of independent spirit as their framers could have wished, and has left no distinction in society between honour and infamy.” Gentle reader, we are not here espousing the cause of duelling, but merely pointing out the necessity of considering the question with judgment, instead of high-flown philanthropy; and to shew that if the law applied to it be so inoperative as to be a dead letter, it is only exposing it to derision by appealing to its protection. Yet what sage dogmas drop from under the wigs respecting this point, and what invaluable exhortations are gravely given from the bench! Army and Navy officers are called upon again and again to “take shelter under the laws of their country;” but not a whisper is given that, in seeking such shelter, the applicant may perchance unroof his own dwelling to satisfy his ravenous shelterers. Besides the expense, there are ticklish cases and ruffled feelings which many a gab-gifted lawyer may not even comprehend, and still less the plain-dealing components of a jury. A couple of young gentlemen lately sought the “shelter,” one of whom had entered a room with the felonious intent of listening to a siren’s song, whence the other had forcibly ejected him—cum pede percussit. An action at the sessions followed the insult, and the amount of pounds, shillings, and pence, to soothe insulted dignity was to be determined by a dozen of unwashed but very worthy citizens. On their retiring to a room with awful solemnity for this purpose, the foreman addressed his companions with—“I don’t see no harm in getting cuffed or kicked, if it doesn’t hurt un much,” under which sage rule his compeers returned a small amount of damages. We have heard of another occasion where the jury, unable to settle who was the greatest offender in a quarrel, and puzzled by the legal irregularities of the case, agreed to “toss up” for the verdict. Now this is a matter of much greater importance than the pseudo humanity-men are at all aware of. Society very justly expects from all who move in a certain rank, and occupy certain stations, a strictness of principle and an amenity of manners in the general intercourse of transactions of life—which no present law can enforce—under the extreme penalty of loss of caste. We will suppose that any high-minded although placid man, may incur such a distressing dilemma; but, even were he nch enough, who would advise his applying to the bench or the bar for redress of a severe injury? To that law which, by ohe of its fictions, everybody is supposed to be quite conversant;3 but which, under its complexity of statutes, forms, reports, digests, indexes, precedents, and 1001 volumes of cases, no man alive is likely to know. Still suppose him by miracle, master of all the technical prolixity and [535] interminable artifice of the “dodge,” it would bear but little on the sores of wounded sensibility; because our togated sages allow of a gentleman being bearded, and called a pitiful sneak, fool, villain, knave, scoundrel, rascal, miscreant, and liar, with impunity, unless the person insulted can prove, over all the doubles of the wily counsel opposed, that he has actually incurred a pecuniary loss in consequence of the defamation, or was thereby injured in his profession. Still more indecently and

3 The absurdity of supposing every man conversant with the law, may be instanced in that the notorious Coke, who was a great lawyer and but a lawyer, suffered his second marriage to take place in an illegal manner, and condescended to plead ignorance of the law! Was he so daft, or was he lying?

24 A Requiem Upon Duelling – Part III. insultingly does the law insist upon what is termed matter-of-fact evidence, as to the amount of money lost by the supposed service of a daughter seduced by one of those satyrs who, revelling in rank and riches, are more effectually kept in check by the salutary fear of personal chastisement, which the practice of duelling keeps in terrorem over their heads. The law of the land has, it is true, many cumulative penalties and endless enactments—guarantees to cover and protect everything in the shape of property: but injured feelings find no commiseration in the statutes. Had Shakespeare been a legislator, be would have settled the difference:— “Good name in man, and woman, dear my lord, Is the immediate jewel of their soul: Who steals my purse, steals trash; ‘tis something, nothing; ‘Twas mine, ‘tis his, and has been slave to thousands; But he that filches from me my good name, Robs me of that, which not enriches him, And makes me poor indeed.” In thus standing up for injured feelings, we disclaim having thr slightest sympathy with the bladder-headed quarrellers in public, and advertising brawlers, who infest our assemblages, and saturate the newspaper columns. This is a practice which has swelled in the ratio of the decrease of danger, and ought to be snuffed out, or it will stink in the nostrils. “Those who slander and insult others,” says a writer in describing some of the parliamentary and gazette sham-duels, “and shelter themselves under their own cowardice, as the cuttle fish escapes by thickening the water with his own filth, are despicable, and ought to be hunted from society; but the humbug of calling a man all sorts of names, and then telling him you attack only his public character, amounts to this, that a man may be politically a thorough rascal, may be detected as such, and exposed accordingly, and yet, it being only in a public capacity, he is none the worse for it. And the bullying, and the scribbling, the proud satisfaction each man feels at having threatened what he dares not do, and at being assured that he has never been suspected of robbery or lying, except of robbing the Public, and breaking every public pledge—Oh! what a satire on modern public spirit.” In matters of such description our Judicature sleeps soundly. We are all taught to know Salus populi supremo, lex esto; but we also painfully know that the implied obedience from the people to the laws in the original compact of jurisprudence, presumed that those same laws were public and explicit; a presumption which can no longer exist, except under the license of legal fiction, since public opinion and whole files of the statutes have long been in open warfare. All the world are aware that judicious legislation would inevitably tend to guide and [536] improve public opinion; but assuredly the pettifogging schemes of litigiousness have a contrary effect. Laws being in their nature only relative, are therefore variable, and should be from time to time improved, not like a Turkish kiosk by repeated additions, but by lopping off the decayed branches. And we can tell the Big-wigs, that on these points the world begins to think for itself, as, at its present advanced age, it certainly ought. The late alarming increase of law stipends, and the lavish employment of the so- called Barrister-Commissioners under prodigal salaries, cannot be hidden under a bushel. So look out sharply, or stand from under!

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The social compact, it is true, can enforce obedience to the laws which exist, be they good or bad; for, as Montaigne remarked, they keep up their credit, not for being just, but because they have been enacted. Still to command respect and voluntary obedience, they should be so framed as to meet Aristotle’s definition, which recognises their being the commanding voice of prudence and reason. But in order to gain a general acknowledgment of their being thus good, surely they ought to be adapted to all the circumstances of the people for whom they are promulgated. But it is the fearful aggregation of them which forms the startling evil. M. Montaigne, just quoted, speaking of the huge mass of the laws in France, even in his time, says— “And I am further of opinion, that it would be better for us to have none at all, than to have them in so prodigious numbers as we have;” and he declares elsewhere, “I will never, if I can help it, put myself into the hands of a man who shall determine my fate, where my life and honour shall depend more upon the care and diligence of my attorney, than my own innocence.” Montaigne, who wrote soliloquies and called them essays, here spoke the opinion of many of the best scrutineers of human vagaries. “The best rule,” said Oceana Harrington, “as to your laws in general, is that they be few. Rome, by the testimony of Cicero, was best governed under those of the Twelve Tables; and by that of Tacitus, plurimae leges, corruptissima respublica.” Herein we cannot crow over France; for our own law, it must be confessed, ought to be reduced from the enormous bulk to which it has swollen, cleared of its barbarous terminology as well as its hampering tri-lingual technicality, and, by a rigorous yet prudent pruning, divested of the most absurd and oppressive of its fictitious quibbles, delays, and expenses. At the present moment the numerous acts of Parliament, and acts to amend acts, constitute a more chaotic maze than Montaigne ever dreamt of; and the confusion increases with each revolving year. The consequent jumble of right and wrong is absolutely awful; and fully bears out the dictum of Cotton, namely, that “law and equity are two good things which God hath joined, but which man hath put asunder.” And when we are told that each man must know the law, it is assuredly proper to shew what sort of a task it is to acquire that knowledge, as well as to let him know that its defects are nearly sufficiently numerous to swamp its excellencies. For example, those decisions in which ignorance and even corruption are palpable, become the authority or precedent for all future cases of a similar nature; on the stolid maxim that whatever has been done before, may legally be done again. Hence the conflicting absurdities of practice— [357] “Such strange effects in law as yet we find, The Pallas and Pandora of mankind:” or, as friend Butler has it, in greater detail— “ ’I would not give,’ quoth Hudibras, ‘A straw to understand a case, Without the admirable skill To wind and manage it at will, To veer and tack, and steer a cause Against the weather-gage of laws.’ ”

26 A Requiem Upon Duelling – Part III.

If such is law, what must we say of our dear friends, the lawyers? As it must out, we acknowledge the good legislator to be a man of capacity and wisdom; but the tribe of traders in law are every-day men enough, requiring cunning rather than sense. It is not impossible for some of this host to be sound at the core; but the great majority have very different aspirations, and the tail are remarkable for abetting fraud, cloaking falsehood, twisting meanings, brow-beating honest witnesses, and showering out words to disguise meaning, thereby carrying casuistry to the pitch so truly designated l’art de chicaner avec Dieu! Lord Bacon, himself A 1 in the art, was pleased to plead their apology by saying—“Lawyers being obnoxious, and addicted each to the laws of their particular country, have no freedom or sincerity of judgment, but are placed, as it were, in bonds.” Now, if the tribe accept of this equivocal justification, we can only add, that they are quite welcome to it. The London light-bobs of the corps so irreverently dubbed “Somebody’s Own,” are recruited by men who—by another legal fiction—are said to be “called” to the bar, after having devoured beef and mutton till they are able to digest law; it being the only trade or profession into which candidates can officially eat their way. These bar- men are pandered to by a “shocking bad” set, and what with the one and the other, right is floored; and it may often happen, as Bentham’s Critic sharply observes, that “the mire of mendacity through which a suitor passes into a court of law, is not less repugnant to the ends of justice, than is a roll in a night-cart a suitable introduction into a ball-room,” (All-muck’s?) This may be abundantly illustrated; but we will here content ourselves by handing up a sample of scandalous legal insolence from the Courier, which came off in 1797. It seems that a Mr. Morton prosecuted one John Farrel for an assault, with an attempt to commit a rape upon his daughter, when the following scene took place:— When Mr. Morton had given his testimony for the crown (as the term is), he was cross-examined by the counsel for the prisoner. The first question asked him by one of these counsel, was, “Pray, sir, is the young lady your daughter?” The witness replied “Yes.” “Pray, sir,” continued the counsel, “how do you know she is your daughter?” The witness thus expressed himself: “Gentlemen of the Jury, I am called upon in this court to give my testimony— I have given it; and have given it honestly as to my mind, and true as to the fact. A counsel (at least I suppose him so by his impertinence), has asked me, whether I can, upon my oath, swear that this young lady is my daughter? Many of you are fathers, and will feel on the occasion as I do. [538] “One observation I beg permission of the Court to make: it is, that in support of the laws of my country, I came forward here to punish a transgressor at my own expense, and that the man who has asked me the question as to my daughter’s legitimacy, and who, no doubt, means to ask many more of the same sort, is a person BRIBED to prevent the course of justice. “Gentlemen, I will prove the assertion. Look to his brief, he there acknowledges to have received ten guineas to defend a villain. Will you believe the testimony on oath of a man who is not purchased, in preference to

27 A Requiem Upon Duelling – Part III.

the argument of a man who is publicly bribed, or will you not? That is the question.” This so completely humbled the self-sufficient counsel, that he was immediately dumb-foundered, and the prisoner was convicted. He was sentenced to two years imprisonment, and to give security for his good behaviour during life, himself in £2000, and two sureties in £1000 each. These abuses and infractions of propriety are monstrous evils, and a serious draw- back to the poesy of civilization. While every good member of society freely acknowledges that man and his passions should ever bow to the supremacy of the law—a dominion that ought not to be subject to inconstancy or caprice—yet he cannot justly be expected to confound that high principle with the litigious phantom which, under the action rather of sharp faculties than expanded minds, takes no cognizance of truth, and addresses passion instead of reason. Law is properly defined to be “a rule of conduct prescribed by the Supreme Power in a state, commanding what is right, and prohibiting what is wrong.” This is a sublime definition, but must excite the risibles of Chancery Lane, and its purlieus; for it cannot, by any stretch of licence or learning, be applied to our present code, wherein the contradictions between the letter-law, and the usages of society, offer numerous traits of infinite absurdity.4 As measures, and not men, are our object, we will merely make a remark or two, without mentioning the names of living lawyers. When we hear a blasphemous appeal to the ALMIGHTY, in favour of a vile murderer, after the utterer has been in possession of the whole truth—when a counsel attempts to blast the character of a witness, he having the felon’s confession in his pocket; when another talks about a murdered woman having ate apples enough to destroy herself with the prussic-acid of the pips, and sheds crocodile-tears in favour of one, whom he well knows to be the most abandoned rascal in existence; when, we repeat, such hypocrisy, and something worse, are in constant practice, we cannot but ask, is there honor, principle, honesty, or justice in this? To a question thus mildly put, one of the fork-tongued or rather double-fanged corps of “Somebody’s own,” may luff up and tartly reply—“No, sir, it must really be admitted that there is neither honour, principle, honesty, nor justice in such artifice; but then it is all quite legal, and shews a very proper tact in litigation.” Now, “on our oath,” we regard the whole of this with dislike and contempt; and should [539] at once agree with sturdy old Bentham, that the prisoner’s counsel, in such cases, is an accessory after the fact. Nor can we excuse the magnates in these matters, since it has scarcely ever been observed, that the judge has tried to heal the wounds brutally inflicted by the browbeaten insolence of the lawyer. Indeed, the knack of insulting a timid witness, and bullying an honest man in the box to cloak falsehood and defeat the ends of justice for hire, is a boast of the trade. We have avoided personality, but

4 See at this moment the exhibition in Ireland, at the so-called state trials of the traitors. Here we have Attorneys-General sobbing, counsel and criminals in mock- heroics, and judges faltering, “visibly affected,” in passing sentences which they are well assured will not be inflicted. ‘Tis pleasant, but somewhat expensive to the public, to see the Bench, the Court, and the Dock, united in acting a broad farce.

28 A Requiem Upon Duelling – Part III. will here quote the necrological eulogy of a lately deceased practiser, as given by his friend, a barrister to wit, in Frazer’s Magazine:— “The greatest skill of Follett consisted in presenting his case in the most harmonious and fair purposed aspect. If there were anything false or fraudulent, a hitch or a blot of any kind in the case, he kept it dexterously out of view, or hurried it triflingly over. But if the blot were on the other side, he had the eye of a lynx, and the scent of the hound, to detect and run down his game. He had the greatest skill in reading an affidavit, and could play the artful dodge in a style looking so much like gentlemanly candour, that you could not find fault.” And this is the manner of praising a lawyer! It is eulogy with a vengeance; and when to such praise-worthy arts we add the common practice of what is termed “setting out” and “giving colour” in pleadings, the which in sober truth is mostly downright lying, we cannot but ask whether these are the men to whom gentlemen ought to appeal in matters of sentiment, delicacy, and high feeling?5 Gulliver sadly puzzled the worthy Houyhnhnm in stating how our law, which was intended for every man’s preservation, should be any man’s ruin. Such was the case even in Swift’s day, when the lawyers only equalled the catapillars in number: but now they rival the aphidae, it follows that the increasing race requires food and raiment, and that therefore the law must be additionally clogged to provide them therewith. One of the methods by which this sort of livelihood is gained, in the question-matter before us, is thus stated by a limb of the law, in illustration of a case where an insulted gentleman enters an action against a 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 or 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 affects 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. [540] 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

5 We have nothing to do with the morality of lawyers; but those who desire to estimate it should just read Lord Campbell’s Lives of our Chancellors. Though this biographer does not go the whole length of Voltaire on the Polygamie of our Lord keepers, he yet tells of sundry dissolute vagaries among the big-wigs. Thus he gravely recounds some scandal of a late eminent equity lawyer, how he had two wives in separate parts of the town, how he accurately divided his night between them, and how he lamented to one that his consultations forced him to stay late at chambers, and to the other that his briefs summoned him to the Temple by four o’clock in the morning.

29 A Requiem Upon Duelling – Part III.

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 pocketted.” As all sorts of squabbles bring grist to the mill of so hungry a trade, the practitioners loudly decry the notion of a Court of Honour, or any scheme for doing without them, stoutly insisting on the majesty of the courts, and that all heads must bow to one common law (one!). But not a few of their arguments, by the free use of invective, prove the code’s unfitness for being resorted to by gentlemen—a term synonymous with an excellent member of community—and some of them actually supply oil to the lamps of their adversaries. A man of honour is eminently distinguished from the dross of mankind, by the uniform propriety of his conduct. Other men are honest from fear of punishment here or hereafter, and ape rectitude in expectation of future reward; the gentleman would be just, if there were no written laws, human or divine, except those that are written on his heart by the finger of his Creator. In every climate, and under every system of religion, he is the same; restraining his passions with decorum, and disturbing no one with speculative opinions, which so often produce greater evils than the errors they are intended to remove. For the reverse of all this, unfortunately, we have not far to search, as an army of notoriety-hunters and a sprinkling of simple well-meaners are always at hand when a topic is under the Press. But neither interested partisans nor hot-headed zealots ever convince, because they are given to misrepresent or exaggerate the bearings of the points before them. Thus Granville Sharp—himself a barrister, and a man of warm heart to boot— entirely gave way to his excited feelings against the Duello, styling a hostile meeting between two gentlemen, wrong-headed, perhaps, but still gentlemanly, as the “perpetration of a most dishonorable, base, and cowardly felony.“ Let us see what a man of greater sense and discernment writes on this important point:— “Sully, on this very subject, speaking to Henry IV., said, ‘that the excessive severity of the means of repression would be the source whence would arise the principal obstacles to their execution, for frequently the penalties which produce the greatest effect, are those which do not call for remission.’ He was quite right; no one now, or then, however much he may deprecate duelling, can deliberately place the murderer and the duellist on the same level. Undoubtedly, cases may be imagined in which very extenuating circumstances being placed to the account of the murderer, and every aggravation heaped on the duellist, the one may be made as black or blacker than the other. But this is neither a fair nor useful way of viewing the subject: substantially, and for all legal purposes, we may assume that the duellist, he [541] who kills his adversary in what is called fair fight, is no murderer—is not

30 A Requiem Upon Duelling – Part III.

guilty of murder in that sense in which public opinion and the spirit of our law now regards murder. It is most unjust, therefore, that he should be classed and tried, and it would be still more unjust that he should be punished as a murderer.”6 Yet what fathoms of mawkishness has the drivelling section of the Press showered on this very erroneous and false assumption! By so spurious a notion truth has been impeded, and its direct operation in courts has been to stultify the stem equity of law; for owing to the absurd classification, the duellist who has acted according to the rules and observances in such matters provided, escapes, from conventional being substituted for strictly legal sentences. The judge, it is true, in charging the jury, explains that every man killed in a duel is murdered; but generally tempers the explanation by pointing out the technical defects in the evidence, which, of course, in “deciding according to their consciences,” they are “to allow the prisoner the benefit of.” Thus, in the instance of Captain Macnamara, he pleaded Not Guilty to the charge of murder, yet never denied that it was by his hand that Colonel Montgomery fell; still the jury acquitted him. Indeed, the law, as it stands, is most ricketty, and cannot be called just until conviction and penalties quadrate with the nature and degree of the offence. In the spring of 1803, when the Coroner returned a verdict of wilful murder against Captain Wolfe, of the Aigle frigate, for being the means of slaying four rioters, the same functionary volunteered to defend the act at the ensuing trial. The vial which we have here poured out on the mates, ministers, and expounders of the Statutes, is so far from being exhausted, that we may fairly say that it is but delicately broached; still, the paying out of more than suits our purpose, might be considered rather more disrespectful to the long-robed tribe than our known love to them might warrant. But as these “limbs” decry all the impulses of honor, feeling, and high principle, we are bound, in public duty, to express our honest conviction that, under their present husk, they are unfit for gentlemanly reference. Among the choice specimens of their tortuous Dogberry-ism, we will just run over the contemptible, but expensive farce got up in the Black Bottle era; a farce which certainly put lots of guineas into some pockets, but did more moral injury towards the stability of our institutions, than the ravings of a whole host of sturdy Chartists. (To be concluded in our next.)

6 This is quoted from a sensible, though sometimes yawing writer in the “Edinburgh Review.” But we could have wished a better work for his criticism than that thing of shreds and patches, the “History of Duelling,” an inconclusive farrago of newspaper cuttings, and gleanings from Dr. Gilchrist and the “Annual Register.” The Reviewer dubs the Author F.R.S., which, but the way, is warranted by the title-page; but certainly Dr. Millingen never yet belonged to the Royal Society of London.

31 A Requiem Upon Duelling – Part IV.

[65]

A REQUIEM UPON DUELLING.

(Concluded from No. 241, page 541.)

THIS ticklish affair must detain us a few moments longer, even though it may be presumed that very few of our readers can possibly have forgotten it. But the outline of the solemn mockery is a necessary item of the evidence which we produce, in order to prove the utter inefficiency of our law-courts, numerous as they are, to discuss affairs of high feeling and honour; and to shew the consequent necessity of forming another. Differences had been known to exist among the officers of the 11th Hussars, commanded by Lord Cardigan; who, from having been removed from the 15th Hussars, after what was considered to be a vexatious prosecution of Captain Wathen, was at least obnoxious to public comment. An alleged informality at the mess-table, whereon a black bottle was accidentally placed, instead of a decanter, was noticed by his lordship, with perhaps deeper gravity than became one whose prerogative to make objections was undoubted and unquestioned. Consequent remonstrances and rejoinders widened the breach, courts-martial, of a disagreeable and vexatious tenour followed, and Mrs. Grundy revelled in full swing. In all this, it appeared to the “discerning public,” that his Lordship had certainly exhibited more of the fortiter than the suaviter; and that while he was screwing discipline to the point of recoil among his inferiors, he forgot to submit his own temper to control. A declared duellist himself, he tried Captain Reynolds for challenging him. Now, here his Lordship, as Colonel-Commandant, was officially correct, but as a tolerably warm hand at excitement, not altogether morally blameless. Still, the Grundyites were vociferous on the wickedness of duelling, the Commander-in-Chief was shocked at the breach of decorum in challenging a superior, the offending Captain was cast, and the Colonel escaped with a gentle rap on the knuckles from the Horse-Guards, for causing the row. But ere the hubbub of this unfortunate dissension had subsided, Lord Cardigan himself sought the duello, and called upon Captain Tuckett to meet him in mortal combat: that gentleman, who had recently been a Lieutenant of the same regiment, accepted his late Colonel’s challenge, and was severely wounded by him. This meeting being directly in the face of Act 1 Victoria, ch. 85, was deemed so flagrant, that it occasioned a prodigious bobbery among the magistrates, the gentlemen of the press, and the reading public; and the end was, that seeing a trial was inevitable, his lordship claimed the privilege of being judged by his peers. By this awful announcement, expectation was wound up to a pitch of the greatest anxiety, and ominous were all the predictions. Then, in the supplement to that amusing miscellany, the “London Gazette,” for Friday, the 12th of February, 1841, the key-note was sounded by the great Lord Chamberlain, as to the forms to be observed, how strangers were to be admitted, and how such ladies as wished to see an Earl tried for felony, were required not to wear bonnets. Great was the bustle! Instead of making Westminster Hall the scene of performance, the Painted Chamber

32 A Requiem Upon Duelling – Part IV. was fitted up as became the highest [66] court of Judicature; and with lavish prodigality, extra seats were provided, galleries extended, the whole new carpeted and matted, and altogether the preparations were more like those for a coronation, or a triumph, than for a straight-forward criminal trial. Meantime a sturdy “Enquirer” in the Times, seeing that certain witnesses were not summoned, nearly spoiled the plot of the affair by publicly asking—“Do the official prosecutors mean to enact the part of Old Bailey practitioners, and purposely leave a flaw in the indictment?” The cat was here nearly out of the bag. At length, on the 16th of February, when the doors were thrown open at half-past nine in the forenoon, the rush was terrific to obtain a view of the “observed of all observers,” and the crowd of carriages filled with spangled ladies, in deep commiseration for the unhappy prisoner, attested the humanity of the fair sex. It was quite awful! Peeresses, Foreigners of distinction, and the Corps diplomatique, filled the front boxes; the Lord High Steward ascended the woolsack, in front of which sat the grave and dignified judges of the land. The peers of the realm were attired in their ermined robes, and wore the collars of their respective orders, the accessories were all in place, and, as a prelude to the august arraignment, prayers to the MOST HIGH were solemnly read by the Bishop of Chichester. But the accused Earl was the lion of the day, and the reverence he made to the peers on each side, was duly and politely returned.7 At the termination of these preliminaries, the forlorn culprit was formally charged with the offence of firing a loaded pistol at Harvey Garnet Phipps Tuckett, with intent to murder him; in a second count, with firing with intent to maim and disable him; and in a third count, with firing with intent to do him some grievous bodily harm; all and either of them being in violation of the Act of I VICTORIA, cap. 85, which makes the crime of deliberately shooting at any of her Majesty’s subjects, with intent to kill or do grievous bodily harm, a felony punishable with transportation; and, in cases where the attempt to kill is followed by a wound, imposes the still graver penalty of DEATH. Though some of the green ones thought it impossible that all the three shots of the counts would miss, the more knowing ones saw the extreme penalty was not dreamt of, because it was so arranged that all about Tuckett’s having actually been wounded, and whatever bore on the capital charge was left out. Still the majority shook their heads, and “thought” that transportation for life was inevitable; and it galled them for the lustre of their order, that a live Earl should be condemned to pick oakum or break stones in a penal settlement. Yet, though every body inferred that the prisoner was not to be found guilty in the extreme, the acting was so well sustained, that the upshot appeared rather uncertain. The court, as we have seen, was opened under the gravest pageantry—the lawyer’s kicked and squabbled as if in earnest—the Archbishop of Canterbury, for himself and friends, delivered a protestation desiring leave to be absent when the painful sentence should be given,

7 Such was the magnificent pageant of an Earl’s trial: it was a striking contrast to the dinginess of the court in which Captain Douglas, one of the participators in the same squabble, was “not-guiltyed,” a few days afterwards.

33 A Requiem Upon Duelling – Part IV. and the pious bishops accordingly withdrew—the [67] Peers were evidently under deep emotion, the ladies were flabbergasted, or, to use the favorite metaphor of Clarissa Harlowe, struck all of a heap—and the anxious public were comforted on learning that the despairing prisoner made his last will and testament in case of his being convicted as a felon! But nascitur ridiculus mus: the verdict did not touch a single hair of the prisoner’s head. The crime of which Lord Cardigan was accused, was, that on the 12th of September, 1840, he fired a loaded pistol at one of her Majesty’s subjects, with the intent to kill, or to maim, or to do grievous bodily harm. Evidence, so clear and convincing as to satisfy justice, was produced to shew that on the day in question, the prisoner had deliberately, and with premeditation, fired a loaded pistol at one of her Majesty’s subjects, and grievously wounded him. And yet the Earl of Cardigan was acquitted of the crime laid to his charge, by the unanimous verdict of a very numerous assemblage of the Nobles of Great Britain and Ireland. No sooner was the conscientious acquittal pronounced by the lawyer who enacted the Lord High Steward on the occasion, than this pro tem. functionary gravely broke the staff which symbolized his authority in the business, and declared the commission dissolved. Thus, after the expenditure of thousands in getting up the shew, and the interruption of the due course of legislation in the meantime, the tricksome prudery of the law was triumphant, the Queen’s act was floored, and Lord Cardigan restored in safety to the bosom of his agitated family. It may be asked, and how was all this done? We are not behind the mystic curtain which veils legal wiles; but there was before that curtain, sufficient to shew that the Lords would be rescued from a “fix” by the hackneyed scheme of a flaw. The prisoner was indicted for shooting at Harvey Garnett Phipps Tuckett. He was proved to have shot at a person who passed by the name of Captain Harvey Tuckett; and because no distinct evidence was brought to shew that the man who was shot was also baptized by the names of Garnett and Phipps, the proof of the indictment was considered to have failed! Now we cannot perceive the materiality of this fatal flaw, to the only issue in which the crown and the public were interested—the question whether the prisoner had or had not committed felony by unlawfully attempting the life of a British subject. What earthly difference could it make in a moral, social, or equitable point of view, whether that British subject was rightly or wrongly described in the indictment—whether he had one or twenty Christian names, so long as it was distinctly proved by sufficient evidence that the law had been broken, and the appointed penalty incurred? As well might a person refuse submission to the cited Act of Victoria, because it can be shewn that the Queen was baptized Alexandrina Victoria; and we have known instances in which a gentleman’s card must have been rather long to bear all his sponsorial designations. Still broader was the farce when the Sir William Follett before mentioned, gravely said in the House of Lords, before hundreds of persons acquainted with Lord Cardigan, his position and military rank, “no evidence has been adduced to connect the noble Earl with the eleventh Hussars;” and equally strange was it to find the Attorney General admitting the fact, qualified only by a doubt, “that the policeman had in his examination mentioned the [68] circumstance—but as he had not been cross-examined on the

34 A Requiem Upon Duelling – Part IV. point, it was very doubtful evidence.” To us, the clearness of the inference bears no proportion to the jargon of the assertion. Such are the ways and workings of the lawyers! Plato long ago pronounced that the knowledge which takes not justice for its principle, ought to be called cunning rather than wisdom. What is enough to produce moral certainty ought to be enough for all purposes of the law. Justice requires that in every case the legal offence for which a man is punished, should be established by incontrovertible evidence; but when this is done, it is bitter irony that quibbles about misnomers should cast offenders back unscathed upon society. Where the crime and the criminal are well ascertained, surely something more than burlesque is expected. The evidence at Lord Cardigan’s trial, was sufficient to produce a complete moral certainty in the minds of every peer and person present—aye, and of every man, woman, and child in the United Kingdom—that the prisoner was Lord Cardigan, that he was a field-officer in the army, and that he commanded the 11th Hussars; as well as that the Captain Tuckett named in the indictment, and the Captain Tuckett spoken of by the witnesses, were one and the same person. If glaring foolery is thus to supplant justice, we ought to import the third verdict—“not proven”—from Scotland, so as not entirely to whitewash the morally-guilty. This would have been a great boon to the Peers, who had each, standing in his place uncovered, to put his right hand with great solemnity upon his breast, and devoutly ejaculate “Not Guilty upon mine honour.” By the way, the Duke of Cleveland did qualify his finding, “Not legally guilty;” and a good scappata it was. While writing this, a case is reported in the Papers (see “Pratt v. Fletcher,” in the “Times,” 15th November, 1848,) by which we see how the long-robed corps behave in defending a paying client convicted of what the presiding Judge emphatically termed—“the greatest injury which one man could inflict upon another.” This fellow was proved to have abused the trust and confidence, which in his character of a medical man had been reposed in him, by seducing the beloved wife of the plaintiff, who had called him in to attend her for an illness. This was a tempting occasion for a display of that legal ribaldry in which our courts delight; and the counsel who played off the buffo in vindication of the criminal who was convicted of this heinous offence to society, entertained the court, the jury, and the spectators, by cutting a bundle of jokes, which, as the reporter gives it—inter-ornamented in italics, drew “laughter”—“loud laughter”—“roars of laughter”—“increased laughter”—and “renewed laughter!“ The sum of £800 given by the verdict to the outraged husband, as a sop for the insulting injury, and derisive exposure, adds to the moral disgust of the proceeding. Where the best feelings are torn by the vilest of our nature, the instance is, of course, one of the last on which the Horatian precept should be allowed, of making the shaft of ridicule supply the place of reason:— “Ridiculum acri Fortius et melius magnas plerumque secat res.” Now it would be useless to deny that this line affords a fine swing [69] of mirth for pruriency to batten on, and is a good source for pouring cates into the lawyer’s gullet: but as nothing can be proper or honourable which is void of justice, commend us, under such circumstances, to the judgment of gentlemen. With them, it is a more

35 A Requiem Upon Duelling – Part IV. serious matter to vindicate the laws of GOD and man, than to preserve the idly technical rules of evidence and pleading, or the quirks and contemptible quibbles of pettifogging practice. The gentleman regards woman as the summum bonum of our condition: the lawyer treats her merely as a matter of price; and in the case of ruined daughters, as domestic drudges, wherein loss of service is considered to be recompensed under a form equally odious and perjured. On these several counts we consider our legal administration—however excellent in some departments—to be as disgusting as it is intolerable, in others. The laws should practically express the true spirit of the people; and their actual strength and worth is not as they are written in the Statute Book, but as their spirit exists in the thoughts, feelings, and habits of the community at large. We believe in the perfectibility, but not in the perfection of human nature; we have much faith in abstract humanity, but not quite so much in concrete man. Thus we have shewn that even the House of Peers, instead of being a Court of Honour, conscientiously distinguishing between the letter of the law and its equity, admitted as good evidence the most hackneyed of the Old Bailey “dodges;” and they affected to be convinced by fluent law verbiage, although it was actually as shallow and as muddy as a sewer. The question may be asked—“Do lawyers always undertake to palliate and defend crime?” In order to give the trade full credit for the necessity, and in many points of view the absolute call for their vocation, we must own, that on the whole some degree of utility is extracted from them. The Law of Nature, so called from being promulgated by natural reason, as it respects intelligent and accountable beings, is assumed to be the will of GOD as relating to human actions; and it is, therefore, obligatory on all mankind. From this first and grand principle, all valid codes derive their force and authority, mediately or immediately; and the human laws thence produced are supposed to comprehend all those rules of conduct which originate in the wisdom of man, and assign every member of the community his right and duties. But the laws, unhappily, are not self-acting; there must be judges, juries, witnesses, and, worse than all, counsel, in the enforcement of edicts which probably run counter to their sympathies. Were the standard of morals higher, it would naturally be thought, that an upright advocate after examining a cause, and finding it altogether unjustifiable, would at once give it up, but we fear that such virtue is fearfully rare. The quirks and expedients by which the practiser’s conscience may be satisfied, are well told by Bayle; who shews how Abu Yusof, the Kadi of Baghdad under Harun- al-Raschid, actually gained 50,000 crowns of gold in one night. The story is worth referring to as a sample. But our business with the lawyers, as a body, is on another count. They clamour loudly for the suppression of Duelling, and offer to manage matters of the kind in a better and quieter way. The offer, of course, is wholly disinterested; for they would doubtless be shocked at the [70] idea of taking a fee for putting down such wickedness. Still we object to them; and we stoutly deny their fitness for an exclusive jurisdiction over differences where the reputation or peace of individuals is seriously involved, many of which are too undefinable and indistinct for judicial cognisance. The law, as now administered, makes no steps between the influence of a high sense of character and low-bred insolence, between official tyranny and profligate malice.

36 A Requiem Upon Duelling – Part IV.

Judge Foster declared that “words of reproach, how grievous soever, are not a provocation sufficient to free the party killing from the guilt of murder. Nor are indecent provoking actions, or gestures expressive of contempt or reproach, without an actual assault on the person.” This would shew that the administration is blunt enough; and it certainly differs from what we have before quoted from the Articles of War. But Graville Sharp pushes the limits farther than the judge, and asserts from his own practical knowledge of the Statutes, “that even an assault upon the person is NOT a provocation sufficient to free the party killing from the guilt of murder.” If such is actually the fact, but we know of no legal dictum which cannot be veered and hauled upon, it surely requires adjustment. Here we must notice another bit of a mistake, in which the public, as well as the lawyers, are apt to indulge. They often assume the duel as an expedient resorted to for the purpose of proving the combatants’ courage, or at least of avoiding the imputation of cowardice. Now this is a most narrow and erroneous view, for, till the contrary is proved, we may assume that men are generally brave; and of naval and military men in the abstract, Addison may be truly cited: “Their courage dwells not in a troubled flood Of mounting spirits and fermenting clouds; Lodged in the soul, with virtue over-ruled, Inform’d by reason, and by reason cool’d: In hours of peace content to be unknown, And only in the field of battle shewn.” When gentlemen quarrel, instead of so petty a motive, we should rather say that custom and feeling are the governing influences; and though we are far from thinking it the best of all possible modes of arranging disputes, the matter is not quite so barbarous as it has been represented to be. In this consideration we eject the bully, the defamer, the seducer, the profligate, and the swindler; and we think, with Junius, that “a base action is a disorder of the mind, and next to the folly of doing it, is the folly which defends it.” And we repeat, that however it may have failed in effecting the good of repairing an injury, the power of duello has effected other sorts of good. In this law-dation, although we have nothing extenuated, we trust there is nought set down in malice; our object was only to shew, that however effective may be the established code for many of the interests and concerns of society, a better and fuller administration of them is still wanted. We cannot pretend to give the panacea, but shall now offer a reasonable means of stifling the system so much complained of. We do so the more earnestly, because it is less by statute than by public opinion— opinion formed by reasonable argument applied to established facts, that the custom admits of entire abolition eventually. Our proposition is simply this, that as stringent enactments against [71] duelling have recently been fulminated, so Courts of Honour be forthwith instituted, in order to save the essentials of a gentleman’s character from eradication. By the law of the land, no court in this kingdom can claim any jurisdiction, unless it be derived some way or other from the Crown; the Sovereign being the fountain of justice and the supreme magistrate of the kingdom, entrusted with the whole executive power of the land. Yet the King or Queen cannot give any

37 A Requiem Upon Duelling – Part IV. addition of jurisdiction to an ancient court; for all such courts must be held in such manner, and proceed by such rules, as their known usage has limited and prescribed. Hence the Courts of Chancery, Common Pleas, King’s Bench, Equity, Admiralty, Records, Arches, Prerogative, County, Requests, Faculties, Exchequer, and other sub- divisions of Common, Civil, Statute, Crown, Ecclesiastical, and Martial Law; with their bad Latin, bad French, and twice-laid English ordinances. To these surely there might be added one more, that which we ask for, to complete the cycle. In preferring this request, we are devising no novel or visionary scheme; we merely wish to see an ancient usage restored as a necessary consequence of suppressing single combats. Though we would no more think of returning to all our former usages, than a snake would of reentering its cast skin; yet the past ages must be studied in order to mould the present, and speculate on the future. In the words of Verulam, “Antiquity deserveth that reverence that men should make a stand thereupon, and discover what is the best way; but when the discovery is well taken, then to make progression.” Many are the maxims of yore which could be brought into play in modelling the institutes of our new Court; and powerful would be its influence upon moral conduct. The Apostle, in writing to Timothy, condemns strife about words, and perverse disputings; and he nearly approaches our topic, in saying, “And if a man also strive for masteries, yet is he not crowned, except he strive lawfully,” in other words, unless he exert his means on such occasions, according to the rules and conditions established. Nor are we conjuring up a phantom. According to the bearing of the law of the land, the less the time that elapses between the insult and its consequences, the greater is the consideration shewn by the courts, whereas by the Code of Honour, time and reflection are held advisable, in order to allow the tumult of the passions to subside, and bring on the possibility of a reconciliation—often proving that in such cases delay is not dangerous. Honour seeks the shortest and most direct road to truth: litigation the most tortuous and uncertain trackway. Again, by the statutes, the parties, seconds, and accessories, are all declared to commit a capital offence; yet the conduct of seconds in endeavouring to heal animosity is often signally praiseworthy. Lawyers affect to know nothing of the tone or feeling of the Laws of Honour; still these laws must ever bear a strict conformity to the principles of simple equity: and they cannot but operate in aiding the important argument bonos mores, especially in those tender and touchy points which are not possitively tangible by the statutes. Indeed it may be summed up in a word, that the Laws of Honour comprise the whole of that universal lex non scripta comprehended under the significant designation of GOOD BREEDING, which materially mark the minor as well as the [72] major virtues of thorough-bred gentlemen, who fear death less than dishonour. We are aware that the difficulty of forming Courts of Honour may be thrown out: but surely it is the business of man to overcome difficulties. We, however, see nothing insuperable, or even formidable in erecting our scheme; and once legally established, we are without apprehension as to the well-working of the measure. Were we consulted upon the subject, we should endeavour to form it on the principle and action of a court-martial: for which end our Boards should be composed of sensible and experienced members, presided over by one who is

38 A Requiem Upon Duelling – Part IV. thoroughly versed in the Code of Honour, and therefore fully competent to the duty of exercising a rational judgment, instructed by law, and governed by conscience. To such a court an appeal could be made conformable with reason, in keeping with integrity, and congenial with the law; and to such a court gentlemen might very safely carry their disputes, without any imputation of their courage. Moreover, it would be readily and cheaply accessible, summary in its designs, powerful in its awards, and final in appeal: and in using the word final, we even include the interposition of mercy whenever it may, on rational principles, be exercised; for such a step would obviously be less capricious, than suffering it to depend on the sentiment of an irresponsible man in office, under the assumed authority of this attribute of Majesty. A tribunal thus established, would meet all the grievances complained of, for it would be conversant with the manners, feelings, and prejudices of its subjects. By this expedient it is hoped that the necessity of duels may, in the end, be effectually superseded, the practice suppressed, and ample satisfaction enforced for all injuries of honour. Nor need the host of the Lex scripta apprehend subversion on such views succeeding; for our Amphyctionic Council cannot bear very hard upon the use of actions and indictments in their courts, since the cases mostly to be treated have seldom been brought before them. We are too good-natured to repeat the reason. Our proposition is far from having anything positively new in its basis, although we offer a simpler form than that in which the recent TRIBUNAL OF HONOUR in Prussia is cast. Too despotic a severity seems to have made a recoil on many of the best- intentioned decrees. It will be remembered that Louis XIV., shocked, we may suppose, at the murderous reign of his predecessor, made a more vigorous and successful effort to repress duelling than any other monarch. The Queen-Mother commenced this wholesome reform; for De Larrey states that she directed the Marshals of France to find out some method to put a stop to that fury, if possible; and she had a declaration drawn up by which the King, at his coronation, swore never to grant a pardon for that crime. In the celebrated Edit des Duels, which the same monarch fulminated in 1679, he who gave or accepted a challenge was deprived of all redress from the Court of Honour, suspended three years from the exercise of any office in the state, was imprisoned for two years, and fined half his yearly income. But those who actually fought were declared guilty of murder; and the penalty of death was denounced against all principals and their aids, with more or less confiscation of property. Even those who fell were to be tried by the gage of contumacy, and deprived of Christian burial. This edict, though [73] offensive in various clauses and highly unpopular, worked wonders for a time; but duelling revived with heartless profligacy ere Louis was well cold, under the regency of Philippe d’Orleans. The Court of Honour above mentioned was a tribunal appointed by the Grand Monarque to be umpire in all matters of dispute among the nobles and noblesse. And its formation is so consonant with our argument, that we will submit it from a note in Bayle, with all its imperfections and excellencies on its head:—

39 A Requiem Upon Duelling – Part IV.

“An edict was published in the year 1651 by which Courts of Honour were erected throughout the kingdom, with Gentlemen-Commissioners in every Bailiwick, that were to have advice of, and immediately to interpose in, all differences that might arise between gentlemen. The difficulty they laboured under was, that they would abolish the custom of duelling, without parting with the notions of honour, destroying of which must have been certain ruin to a warlike nation, that once had received them; and therefore they never designed that the worship of the idol should cease, but they only tried whether it was not to be satisfied with less valuable victims, and other sacrifices besides human blood. “In the year 1653 Louis XIV. set forth another declaration against duels, in which, having made some additions to his former edict, he commands the Marshals of France to draw up a regulation touching the satisfaction and reparations of honour which they should think necessary. This order was immediately obeyed, and nineteen articles were drawn up and published accordingly. In these, calling a man a fool, coward, or the like, was punished with a month’s imprisonment, and, after being released, the offender was to declare to the party so offended that he had wrongfully and impertinently injured him by outrageous words, which he owned to be false, and asked him to forgive. Giving one the lie, or threatening to beat him, was two months’ imprisonment, and the submission to be made afterwards yet more humble than the foregoing. For blows, as striking with the hand, and other injuries of the same nature, the offender was to lie in prison six months, unless, at the request of the offended, half of that time was changed into a pecuniary mulct, that might not be under 1500 livres, to be paid before he was set at liberty, for the use of the nearest hospital to the abode of the offended; after which, the offender was to submit to the same blows from the offended (lex talionis), and to declare by word of mouth, and in writing, that he had struck him in a brutish manner, and begged him to pardon and forget that offence. For caning, and blows given with a stick, the punishment was still more severe, and the offender was to beg pardon on his knees. The articles took notice of, and made ample provisions against, all sorts of injuries, from the most trifling offences to the highest outrages, and were very severe against all those that should refuse to submit to the penalties imposed. “The Marshals of France remained the Supreme Judges in all these matters; and under them acted the Governors and Lieutenants-General of Provinces, in whose absence the Gentlemen-Commissioners in every Bailiwick, having power to call the officers of justice to their assistance, were to take all provisional care imaginable; so that no lawyers or mechanics had a hand in composing any differences concerning the point of honour.” But long before the days of Louis and his Marshals, the Code of Honour had been understood and practised. In our own country the Royal Prerogative was exercised at a very early age by the Court of Chivalry, a branch of jurisdiction acting directly under the Crown. It was also called the Marshals’ Court, and was held before the Constable and Earl Marshal of England jointly; though after the attainder of [74]

40 A Requiem Upon Duelling – Part IV.

Stafford, Duke of Buckingham, in 1521, and the consequent extinguishment of the office of Lord High Constable by Henry VIII., it was held before the Earl Marshal only. That the material part of its judicial functions have long surceased, has been regretted by those who have traced its beneficial tendency. It was one of the properties of this Court, as shewn by Selden, Hale, and other standard writers on the law of England, and as described by Blackstone, to act as “a Court of Honour, to give satisfaction to all such as are aggrieved in that point, a point of a nature so nice and delicate, that its wrongs and injuries escape the notice of the common law, and yet are fit to be redressed somewhere.” We now trust that, in chaunting this Requiem, we have made out a proper case; that it has been shewn that the law, as administered, makes no reparation in point of honour; that the new enactments endanger principle; that, therefore, such a jurisdiction as would meet the exigence is wanting; and that we have produced warranty to prove that our proposal is conformable to precedent. Casting aside honour to embrace litigation, is like quitting a sheet-anchor to hold on by a kedge: and we advise the Services to weigh the matter well before they cast it adrift, never losing sight of their proper motto —

“UT IN HONORE CUM DIGNITATE VIVAMUS.”

41 Bibliography

Bibliography

Arthur William Alsager Pollock. “A Requiem Upon Duelling.” Part I. Colburn’s United Service Magazine and Naval and Military Journal. No. 239. October, 1848. Pages 267-276. https://books.google.co.uk/books?id=zAgcAQAAIAAJ Arthur William Alsager Pollock. “A Requiem Upon Duelling.” Part II. Colburn’s United Service Magazine and Naval and Military Journal. No. 240. November, 1848. Pages 352-360. https://books.google.co.uk/books?id=Ca8jiWlhCdQC Arthur William Alsager Pollock. “A Requiem Upon Duelling.” Part III. Colburn’s United Service Magazine and Naval and Military Journal. No. 241. December, 1848. Pages 531-541. https://books.google.co.uk/books?id=Ca8jiWlhCdQC Arthur William Alsager Pollock. “A Requiem Upon Duelling.” Part IV. Colburn’s United Service Magazine and Naval and Military Journal. No. 242. January, 1849. Pages 65-74. https://books.google.co.uk/books?id=KwocAQAAIAAJ

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