ANTI-DUELLING ACT.
The death of Mr. Jonathan Cilley, a representative in Congress from
the State of Maine, killed in a duel with rifles, with Mr. Graves
of Kentucky, led to the passage of an act with severe penalties
against duelling, in the District of Columbia, or out of it upon
agreement within the District. The penalties were--death to all the
survivors, when any one was killed: a five years imprisonment in
the penitentiary for giving or accepting a challenge. Like all acts
passed under a sudden excitement, this act was defective, and more
the result of good intentions than of knowledge of human nature.
Passions of the mind, like diseases of the body, are liable to break
out in a different form when suppressed in the one they had assumed.
No physician suppresses an eruption without considering what is to
become of the virus which is escaping, if stopped and confined to
the body: no legislator should suppress an evil without considering
whether a worse one is at the same time planted. I was a young
member of the general assembly of Tennessee (1809), when a most
worthy member (Mr. Robert C. Foster), took credit to himself for
having put down billiard tables in Nashville. Another most worthy
member (General Joseph Dixon) asked him how many card tables he
had put up in their place? This was a side of the account to which
the suppressor of billiard tables had not looked: and which opened
up a view of serious consideration to every person intrusted with
the responsible business of legislation--a business requiring so
much knowledge of human nature, and so seldom invoking the little we
possess. It has been on my mind ever since; and I have had constant
occasions to witness its disregard--and seldom more lamentably
than in the case of this anti-duelling act. It looked to one evil,
and saw nothing else. It did not look to the assassinations, under
the pretext of self-defence, which were to rise up in place of the
regular duel. Certainly it is deplorable to see a young man, the
hope of his father and mother--a ripe man, the head of a family--an
eminent man, necessary to his country--struck down in the duel; and
should be prevented if possible. Still this deplorable practice is
not so bad as the bowie knife, and the revolver, and their pretext
of self-defence--thirsting for blood. In the duel, there is at
least consent on both sides, with a preliminary opportunity for
settlement, with a chance for the law to arrest them, and room for
the interposition of friends as the affair goes on. There is usually
equality of terms; and it would not be called an affair of honor, if
honor was not to prevail all round; and if the satisfying a point
of honor, and not vengeance, was the end to be attained. Finally,
in the regular duel, the principals are in the hands of the seconds
(for no man can be made a second without his consent); and as both
these are required by the duelling code (for the sake of fairness
and humanity), to be free from ill will or grudge towards the
adversary principal, they are expected to terminate the affair as
soon as the point of honor is satisfied--and, the less the injury,
so much the better. The only exception to these rules is, where the
principals are in such relations to each other as to admit of no
accommodation, and the injury such as to admit of no compromise. In
the knife and revolver business, all this is different. There is
no preliminary interval for settlement--no chance for officers of
justice to intervene--no room for friends to interpose. Instead of
equality of terms, every advantage is sought. Instead of consent,
the victim is set upon at the most unguarded moment. Instead of
satisfying a point of honor, it is vengeance to be glutted. Nor
does the difference stop with death. In the duel, the unhurt
principal scorns to continue the combat upon his disabled adversary:
in the knife and revolver case, the hero of these weapons continues
firing and stabbing while the prostrate body of the dying man gives
a sign of life. In the duel the survivor never assails the character
of the fallen: in the knife and revolver case, the first movement of
the victor is to attack the character of his victim--to accuse him
of an intent to murder; and to make out a case of self-defence, by
making out a case of premeditated attack against the other. And in
such false accusation, the French proverb is usually verified--_the
dead and the absent are always in the wrong_.
The anti-duelling act did not suppress the passions in which
duels originate: it only suppressed one mode, and that the least
revolting, in which these passions could manifest themselves. It did
not suppress the homicidal intent--but gave it a new form: and now
many members of Congress go into their seats with deadly weapons
under their garments--ready to insult with foul language, and
prepared to kill if the language is resented. The act should have
pursued the homicidal intent into whatever form it might assume;
and, therefore, should have been made to include all unjustifiable
homicides.
The law was also mistaken in the nature of its penalties: they
are not of a kind to be enforced, if incurred. It is in vain to
attempt to punish more ignominiously, and more severely, a duel
than an assassination. The offences, though both great, are of very
different degrees; and human nature will recognize the difference
though the law may not: and the result will be seen in the conduct
of juries, and in the temper of the pardoning power. A species of
penalty unknown to the common law, and rejected by it, and only
held good when a man was the vassal of his lord--the dogma that the
private injury to the family is merged in the public wrong--this
species of penalty (amends to the family) is called for by the
progress of homicides in our country; and not as a substitute for
the death penalty, but cumulative. Under this dogma, a small injury
to a man's person brings him a moneyed indemnity; in the greatest
of all injuries, that of depriving a family of its support and
protector, no compensation is allowed. This is preposterous, and
leads to deadly consequences. It is cheaper now to kill a man, than
to hurt him; and, accordingly, the preparation is generally to kill,
and not to hurt. The frequency, the wantonness, the barbarity, the
cold-blooded cruelty, and the demoniac levity with which homicides
are committed with us, have become the opprobrium of our country.
An incredible number of persons, and in all parts of the country,
seem to have taken the code of Draco for their law, and their own
will for its execution--kill for every offence. The death penalty,
prescribed by divine wisdom, is hardly a scare-crow. Some States
have abolished it by statute--some communities, virtually, by a
mawkish sentimentality: and every where, the jury being the judge
of the law as well as of the fact, find themselves pretty much
in a condition to do as they please. And unanimity among twelve
being required, as in the English law, instead of a concurrence of
three-fifths in fifteen, as in the Scottish law, it is in the power
of one or two men to prevent a conviction, even in the most flagrant
cases. In this deluge of bloodshed some new remedy is called for
in addition to the death penalty; and it may be best found in the
principle of compensation to the family of the slain, recoverable in
every case where the homicide was not justifiable under the written
laws of the land. In this wide-spread custom of carrying deadly
weapons, often leading to homicides where there was no previous
intent, some check should be put on a practice so indicative of
a bad heart--a heart void of social duty, and fatally bent on
mischief; and this check may be found in making the fact of having
such arms on the person an offence in itself, _prima facie_ evidence
of malice, and to be punished cumulatively by the judge; and that
without regard to the fact whether used or not in the affray.
The anti-duelling act of 1839 was, therefore, defective in not
pursuing the homicidal offence into all the new forms it might
assume; in not giving damages to a bereaved family--and not
punishing the carrying of the weapon, whether used or not--only
accommodating the degree of punishment to the more or less use
that had been made of it. In the Halls of Congress it should
be an offence, in itself, whether drawn or not, subjecting the
offender to all the penalties for a high misdemeanor--removal from
office--disqualification to hold any office of trust or profit under
the United States--and indictment at law besides.