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“But a sense of shame is so much torture; and no relief presents itself otherwise than by an attempt upon the life of our adversary.” What then The distress which men suffer by the want of money is oftentimes extreme, and no resource can be discovered but that of removing a life which stands between the distressed person and his inheritance. The motive in this case is as urgent, and the means much the same as in the former: yet this case finds no advocate. Take away the circumstance of the duellist's exposing his own life, and it becomes assassination; add this circumstance, and what difference does it make 7 None but this, that fewer perhaps will imitate the example, and human life will be somewhat more safe, when it cannot be attacked without equal danger to the aggressor's own. Experience, however, proves that there is fortitude enough in most men to undertake this hazard; and were it otherwise, the defence, at best, would be only that which a highwayman or housebreaker might plead, whose attempt had been so daring and desperate, that few were likely to repeat the same. In expostulating with the duellist, I all along suppose his adversary to fall. Which supposition I am at liberty to make, because, if he have no right to kill his adversary, he has none to attempt it. In return, I forbear from applying to the case of duelling the Christian principle of the forgiveness of injuries; because it is possible to suppose the injury to be forgiven, and the duellist to act entirely from a concern for his own reputation: where this is not the case, the guilt of duelling is manifest, and is greater. In this view it seems unnecessary to distinguish between him who gives, and him who accepts, a challenge: for, on the one hand, they incur an equal hazard of destroying life; and on the other, both act upon the same persuasion, that what they do is necessary, in order to recover or preserve the good opinion of the world. Public opinion is not easily controlled by civil institutions: for which reason I question whether any regulations can be contrived, of sufficient force to suppress or change the rule of honour, which stigmatizes all scruples about duelling with the reproach of cowardice. -. The insufficiency of the redress which the law of the land affords, for those injuries which chiefly affect a man in his sensibility and reputation, tempts many to redress themselves. Prosecutions for such offences, by the trifling damages that are recovered, serve only to make the sufferer more ridiculous.--This ought to be remedied. For the army, where the point of honour is cultivated with exquisite attention and refinement, I would establish a Court of Honour, with a power of awarding those submissions and acknowledgments, which it is generally the purpose of a challenge to obtain; and it might grow into a fashion, with persons of rank of all professions, to refer their quarrels to this tribunal. Duelling, as the law now stands, can seldom be overtaken by legal punishment. The challenge, appointment, and other previous circumstances which indicate the intention with which the combatants met, being suppressed, nothing appears to a court of justice but the actual rencounter; and if a person be slain when actually fighting with his adversary, the law deems his death nothing more than manslaughter.
“If it be possible, live peaceably with all men;”
which precept contains an indirect confession that
this is not always possible. The instances” in the fifth chapter of St. Matthew are rather to be understood as proverbial methods of describing the general duties of forgiveness and benevolence, and the temper which we ought to aim at acquiring, than as directions to be specifically observed, or of themselves of any great importance to be observed. The first of these is, “If thine enemy smite thee on thy right cheek, turn to him the other also ;” yet, when one of the officers struck Jesus with the palm of his hand, we find Jesus rebuking him for the outrage with becoming indignation: “If I have spoken evil, bear witness of the evil; but if well, why smitest thou me?” (John, xviii. 23.) It may be observed, likewise, that the several examples are drawn from instances of small and tolerable injuries. A rule which forbade all opposition to injury, or defence against it, could have no other effect than to put the good in subjection to the bad, and deliver one half of mankind to the depredation of the other half; which must be the case, so long as some considered themselves as bound by such a rule, whilst others despised it. St. Paul, though no one inculcated forgiveness and forbearance with a deeper sense of the value and obligation of these virtues, did not interpret either of them to require an unresisting submission to every contumely, or a neglect of the means of safety and self defence. He took refuge in the laws of his country, and in the privileges of a Roman citizen, from the conspiracy of the Jews (Acts, xxv. 11); and from the clandestine violence of the chief captain (Acts, xxii. 25). And yet this is the same apostle who reproved the litigiousness of his Corinthian converts with so much severity. “Now, therefore, there is utterly a fault among you, because ye go to law one with another. Why do ye not rather take wrong? why do ye not rather suffer yourselves to be defrauded?” On the one hand, therefore, Christianity excludes all vindictive motives, and all frivolous causes of prosecution; so that where the injury is small, where no good purpose of public example is answered, where forbearance is not likely to invite a repetition of the injury, or where the expense of an action becomes a punishment too severe for the offence; there the Christian is withholden by the authority of his religion from going to law. On the other hand, a lawsuit is inconsistent with no rule of the gospel, when it is instituted,— 1. For the establishing of some important right. 2. For the procuring a compensation for some considerable damage. 3. For the preventing of future injury. . But, since it is supposed to be undertaken simply with a view to the ends of justice and safety, the prosecutor of the action is bound to confine himself to the cheapest process which will accomplish these ends, as well as to consent to any peaceable expedient for the same purpose; as to a reference, in which the arbitrators can do what the law cannot, divide the damage when the fault is mutual; or to a compounding of the dispute, by accepting a compensation in the gross, without entering into articles and items, which it is often very difficult to adjust separately. As to the rest, the duty of the contending parties may be expressed in the following directions: Not by appeals to prolong a suit against your own conviction. Not to undertake or defend a suit against a poor adversary, or render it more dilatory or expensive than necessary, with the hope of intimidating or wearying him out by the expense. Not to influence evidence by authority or expectation; Nor to stifle any in your possession, although it make against you. Hitherto we have treated of civil actions. In criminal prosecutions, the private injury should be forgotten, and the prosecutor proceed with the same temper, and upon the same motives as the magistrate: the one being a necessary minister of justice as well as the
* “Whoever shall smite thee on thy right cheek, turn to him the other also ; and if any man will sue thee at the law, and take away thy coat, let him have thy cloak also ; and whosoever shall compel thee to go a mile, go with him twain.”
other, and both bound to direct their conduct by a dispassionate care of the public welfare. In whatever degree the punishment of an offender is conducive, or his escape dangerous, to the interest of the community, in the same degree is the party against whom the crime was committed bound to prosecute, because such prosecutions must in their nature originate from the sufferer. Therefore great public crimes, as robberies, forgeries, and the like, ought not to be spared, from an apprehension of trouble or expense in carrying on the prosecution, from falseshame, or misplaced compassion. There are many offences, such as nuisances, neglect of public roads, forestalling, engrossing, smuggling, sabbath-breaking, profaneness, drunkenness, prostitution, the keeping of lewd or disorderly houses, the writing, publishing, or exposing to sale lascivious books or pictures, with some others, the prosecution of which, being of equal concern to the whole neighbourhood, cannot be charged as a peculiar obligation upon any. Nevertheless, there is great merit in the person who undertakes such prosecutions upon proper motives; which amounts to the same thing. The character of an informer is in this country undeservedly odious. But where any public advantage is likely to be attained by information, or other acti. vity in promoting the execution of the laws, a good man will despise a prejudice founded in no just reason, or will acquit himself of the imputation of interested designs by giving away his share of the penalty. On the other hand, prosecutions for the sake of the reward, or for the gratification of private enmity, where the offence produces no public mischief, or where it arises from ignorance or inadvertency, are reprobated under the general description of applying a rule of law to a purpose for which it was not intended. Under which description may be ranked an officious revival of the laws against popish priests and dissenting teachers. - M