The Duel (29 page)

Whitehall, Jan. 15
. The Earl of Stanhope left Paris the 9
^th
Instant I the Evening & Embarked at Calis the 13
^th
at Night; and having Landed the next Morning at Deal, returned hither this Day.

Berne, Jan. 17
. The State for preventing private Quarrels, have made a severe Law, against Dueling, and whoever shall deliver a Challenge to another, or give a blow, though in his own Defence, shall for the first fault be imprisoned a Year, the second be for ever banished the Canton. The Party aggrieved by a blow or any Injurious terms, to make his Complaint to the Council, who will order Satisfaction for the Affront. The Canton of Schaffhausen has received a favourable resolution from the Court of Vienna, as to the Differences between that Canton and the Regency of Nellenbourg, which they gratefully acknowledge the good Offices of His Britannick Majesty therein at the Court of Vienna.

ADVERTISEMENTS

A Certain Person has lost in Boston a Silver Picktooth Case, with a Cypher Engraved on one End, whoever will bring it to John Campbell in Corn-hill, Boston, so as the true owner may have it again, shall be well rewarded.

—from
The Boston News-Letter,
May 18
^th
1720. It is worth noting that a regional ban on dueling is reported alongside major world news, in a sense, demonstrating the proliferation of the act itself. The personal ad concerning the lost cypher inscribed picktooth (synonym for toothpick) case is included merely for entertainment. It has no bearing on the history of dueling
.

And do, by our signatures hereunto annexed, solemnly pledge ourselves to each other, not to vote at any Election
for any man, who, from current fame, or our own private conviction, we shall believe to have sent, accepted, or carried a Challenge to fight a Duel; or to have been in any wise concerned in promoting a Duel, or acting as Second or Surgeon therein, after the date hereof.

“For the better attaining the object of this Association, the affairs thereof shall be conducted by a Committee of—; with a President, Vice-President, Treasurer and Secretary, chosen by themselves out of their own number.—members shall form a quorum.

—from the 1809 announcement of the formation of The
Anti-Duelling Association of New York,
which was issued in a collection of anti-dueling sermons and tracts by
Lyman Beecher
(1775
–
1863). Beecher was a politically progressive Presbyterian minister and father of thirteen children, most notably the writer, Harriet Beecher Stowe. The blank dashes above served as placeholders. This was a form for branches of the Association to use when starting their groups
.

MY LORDS,

I thought it fit for my place, and for these times, to bring to hearing before your lordships some cause touching private duels, to see if this court can do any good to tame and reclaim that evil, which seems unbridled. And I could have wished that I had met with some greater persons, as a subject for your censure; both because it had been more worthy of this presence, and also the better to have shown the resolution I myself have to proceed without respect of persons in this business. But finding this cause on foot in my predecessor’s time, I thought to lose no time in a mischief that groweth every day; and besides, it passes not amiss sometimes in government, that the greater sort be admonished by an example made in the meaner, and the dog to be eaten before the lion. Nay, I should think, my lords, that men of birth and quality will leave the practice, when it begins to be vilified, and come so low as to barber-surgeons and butchers, and such base mechanical persons. And for the greatness of this presence, in which I take much comfort, both as I consider it in itself, and much more in respect it is by his Majesty’s direction, I will supply the meanness of the particular cause, by handling of the general point: to the end that by the occasion of this present cause, both my purpose of prosecution against duels and the opinion of the court, without which I am nothing, for the censure of them may appear, and thereby offenders in that kind may read their own case, and know what they are to expect; which may serve for a warning until example may be made in some greater person, which I doubt the times will but too soon afford.

Therefore, before I come to the particular, whereof your lordships are now to judge, I think the time best spent to speak somewhat (1) of the nature and greatness of this mischief; (2) Of the causes and remedies; (3) of the justice of the law of Eng. land, which some stick not to think defective in this matter; (4) Of the capacity of this court, where certainly the remedy of this mischief is best to be found; (5) touching my own purpose and resolution, wherein I shall humbly crave your lordships’ and assistance.

For the mischief itself, it may please your lordships to take into your consideration that, when revenge is once extorted out of the magistrate’s hands, contrary to God’s ordinance,
mihi vindicta, ego retribuam
³
, and every man shall bear the sword, not to defend, but to assail, and private men begin once to presume to give law to themselves and to right their own wrongs, no man can foresee the danger and inconveniences that may arise and multiply thereupon. It may cause sudden storms in court, to the disturbance of his Majesty and unsafety of his person. It may grow from quarrels to bandying, and from bandying to trooping, and so to tumult and commotion; from particular persons to dissension of families and alliances; yea, to national quarrel: accruing to the not under foresight. So that the State by this means shall be like to a distempered and imperfect body, continually subject to inflammations and convulsions. Besides, certainly both in divinity and in policy, offenses of presumption are the greatest. Other offenses yield and consent to the law that it is good, not daring to make defense, or to justify themselves; But this offense expressly gives the law an affront, as if there were two laws, one a kind of gown law and the other a law of reputation, as they term it. So that Paul’s and Westminster, the pulpit and the courts of justice, must give place to the law, as the King speaketh in his proclamation, of ordinary tables, and such reverend assemblies; the Yearbooks, and statute books must give place to some French and Italian pamphlets, which handle the doctrines of duels, which, if they be in the right, transeamus ad illa, let us receive them, and not keep the
people in conflict and distraction between two laws. Again, my lords, it is a miserable effect, when young men full of towardness and hope, such as the poets call “Aurora, filii,” sons of the morning, in whom the expectation and comfort of their friends consisteth, shall be cast away and destroyed in such a vain manner. But much more it is to be deplored when so much noble and genteel blood should be spilt upon such follies, as, if it were adventured in the field in service of t1ae King and realm, were able to make the fortune of a day and change the future of a kingdom. So your lordships see what a desperate evil this is; it troubleth peace; it disfurnisheth war; it bringeth calamity upon private men, peril upon the State, and contempt upon the law.

Touching the causes of it: the first motive, no doubt, is a false and erroneous imagination of honor and credit; and therefore the King, in his last proclamation, doth most aptly and excellently call them bewitching duels. For, if one judge of it truly, it is no better than a sorcery that enchanteth the spirits of young men, that bear great minds with a false show, species falsa; and a kind of satanical illusion and apparition of honor against religion, against law, against moral virtue, and against the precedents and examples of the best times and valiantest nations; as I shall tell you by and by, when I shall show you that the law of England is not alone in this point. But then the seed of this mischief being such, it is nourished by vain discourses and green and unripe conceits, which, nevertheless, have so prevailed as though a man were staid and sober-minded and a right believer touching the vanity and unlawfulness of these duels; yet the stream of vulgar opinion is such, as it imposeth a necessity upon men of value to conform themselves, or else there is no living or looking upon men’s faces; so that we have not to do, in this case, so much with particular persons as with unsound and depraved opinions, like the dominations and spirits of the air which the Scripture speaketh of. Hereunto may be added that men have almost lost the true notion and understanding of fortitude and valor. For fortitude distinguisheth of the grounds of quarrels whether they be just, and not only so, but whether they be worthy; and setteth a better price upon men’s lives than to bestow them idly. Nay, it is weakness and disesteem of a man’s self, to put a man’s life upon such ledger performances. A man’s life is not to be trifled away; it is to be offered up and sacrificed to honorable services, public merits, good causes, and noble adventures. It is in expense of blood as it is in expense of money. It is no liberality to make a profusion of money upon every vain occasion; nor no more is it fortitude to make effusion of blood, except the cause be of worth. And thus much for the cause of this evil.

For the remedies. I hope some great and noble person will put his hand to this plough, and I wish that my labors of this day may be but forerunners to the work of a higher and better hand. But yet to deliver my opinion as may be proper for this time and place, there be four things that I have thought on, as the most effectual for the repressing of this depraved custom of particular combats.

The first is, that there do appear and be declared a constant and settled resolution in the State to abolish it. For this is a thing, my lords, must go down at once or not at all; for then every particular man will think himself acquitted in his reputation, when he sees that the State takes it to heart, as an insult against the King’s power and authority, and thereupon hath absolutely resolved to master it; like unto that which we set down in express words in the edict of Charles IX of France, touching duels, that the King himself took upon him the honor of all that took themselves grieved or interested for not having performed the combat. So must the State do in this business; and in my conscience there is none that is but of a reasonable sober disposition, be he never so valiant, except it be some furious person that is like a firework, but will be glad of it, when he shall see the law and rule of State disinterest him of a vain and unnecessary hazard.

Secondly, care must be taken that this evil be no more cockered, nor the humor of it fed; wherein I humbly pray your lordships, that I may speak my mind freely, and yet be understood aright. The proceedings of the great and noble commissioners martial I honor and reverence much, and of them I speak not in any sort. But I say the
compounding of quarrels, which is otherwise in use by private noblemen and gentlemen, is so punctual, and hath such reference and respect unto the received conceits, what is beforehand, and what is behindhand, and I cannot tell what, as without all question it doth, in a fashion, countenance and authorize this practice of duels, as if it had in it somewhat of right.

Thirdly, I must acknowledge that I learned out of the King’s last proclamation, the most prudent and best applied remedy for this offense, if it shall please his Majesty to use it, that the wit of man can devise. This offense, my lords, is grounded upon a false conceit of honor; and therefore it would be punished in the same kind, in eo quis rectissime plectifur, in quo peccat. The fountain of honor is the King and his aspect, and the access to his person continueth honor in life, and to be banished from his presence is one of the greatest eclipses of honor that can be. If his Majesty shall be pleased that when this court shall censure any of these offenses in persons of eminent quality, to add this out of his own power and discipline, that these persons shall be banished and excluded from his court for certain years, and the courts of his queen and prince, I think there is no man that hath any good blood in him will commit an act that shall cast him into that darkness that he may not behold his sovereign’s face.

Lastly, and that which more properly concerneth this court. We see, my lords, the root of this offense is stubborn; for it despiseth death, which is the utmost of punishments; and it were a just but a miserable severity to execute the law without all remission or mercy, where the case proveth capital. And yet the late severity in France was more, where by a kind of martial law, established by ordinance of the King and Parliament, the party that had slain another was presently had to the gibbet, insomuch as gentlemen of great quality were hanged, their wounds bleeding, lest a natural death should prevent the example of justice. But, my lords, the course which we shall take is of far greater lenity, and yet of no less efficacy; which is to punish, in this court, all the middle acts and proceedings which tend to the duel, which I will enumerate to you anon, and so to hew and vex the root in the branches, which, no doubt, in the end will kill the root, and yet prevent the extremity of law.

Now for the law of England, I see it excepted to, though ignorantly, in two points. The one, that it should make no difference between an insidious and foul murder, and the killing of a man upon fair terms, as they now call it. The other, that the law hath not provided sufficient punishment and reparations for contumely of words, as the lie, and the like. But these are no better than childish novelties against the divine law, and against all laws in effect, and against the examples of all the bravest and most virtuous nations of the world.

For first, for the law of God, there is never to be found any difference made in homicide, but between homicide voluntary and involuntary, which we term misadventure. And for the case of misadventure itself, there were cities of refuge; so that the offender was put to his flight, and that flight was subject to accident, whether the revenger of blood should overtake him before he had gotten sanctuary or no. It is true that our law hath made a more subtle distinction between the will inflamed and the will advised, between manslaughter in heat and murder upon prepensed malice or cold blood, as the soldiers call it; an indulgence not unfit for a choleric and warlike nation; for it is true, ira furor brevis, a man in fury is not himself. This privilege of passion the ancient Roman law restrained, but to a case; that was, if the husband took the adulterer in the manner. To that rage and provocation only it gave way, that a homicide was justifiable. But for a difference to be made in killing and destroying man, upon a forethought purpose, between foul and fair, and, as it were, between single murder and vied murder, it is but a monstrous child of this latter age, and there is no shadow of it in any law, divine or human. Only it is true, I find in the Scripture that Cain enticed his brother into the field and slew him treacherously; but Lamech vaunted of his manhood, that he would kill a young man, and if it were to his hurt; so as I see no difference between an insidious murder and a braving or presumptuous murder, but the difference between Cain and Lamech.