are my witnesses, the walls of yonder temple, where I have heretofore addressed you, are my witnesses, how freely I have animadverted on this subject, in the presence both of those who have violated the laws, and of those whose indispensable duty it is to see the laws executed on those who violate them.

"I enjoy another opportunity; and would to God I might be permitted to approach for once the late scene of death. Would to God I

could there assemble on the one side the disconsolate mother with her seven fatherless children, and on the other, those who administer the justice of my country. Could I do this, I would point them to these sad objects. I would entreat them, by the agonies of bereaved fondness, to listen to the widow's heartfelt groans; to mark the orphans' sighs and tears. And having done this, I would uncover the breathless corpse of Hamilton, I would lift from his gaping wound his bloody mantle, I would hold it up to heaven before them, and I would ask, in the name of God, I would ask, whether at the sight of it they felt no compunction?

"You will ask, perhaps, what can be done to arrest the progress of a practice which has yet so many advocates? I answer, nothing, - if it be the deliberate intention to do nothing. But if otherwise, much is within our power.

"Let, then, the Governor see that the laws are executed; let the Council displace the man who offends against their majesty; let courts of justice frown from their bar, as unworthy to appear before them, the murderer and his accomplices; let the people declare him unworthy of their confidence who engages in such sanguinary contests. Let this be done, and, should life still be taken in single combat, then the Governor, the Council, the court, the people, looking up to the Avenger of sin, may say, 'We are innocent, we are innocent.'

"Do you ask how proof can be obtained? How can it be avoided? The parties return, hold up before our eyes the instruments of death, publish to the world the circumstances of their interview, and even, with an air of insulting triumph, boast how coolly and deliberately they proceeded in violating one of the most sacred laws of earth and heaven! “Ah! ye tragic shores of Hoboken, crimsoned with the richest blood, I tremble at the crimes you record against us, -the annual register of murders which you keep and send up to God! Place of inhuman cruelty! beyond the limits of reason, of duty, and of religion, where man assumes a more barbarous nature, and ceases to be man. What poignant, lingering sorrows do thy lawless combats occasion to surviving relatives!

"Ye who have hearts of pity, ye who have experienced the anguish of dissolving friendship, who have wept, and still weep, over the mouldering ruins of departed kindred, ye can enter into this reflection."

No. IV.

THE LAW OF ENGLAND RELATIVE TO CHALLENGES AND DUELS.

THESE offences are thus described in the books:

"Duel, in our ancient law, is a fight between persons in a doubtful case for the trial of the truth. Fleta. See tit. Battel. But this kind of duel is disused; and what we now call a duel is a fighting between two, upon some quarrel precedent: wherein, if a person is killed, both the principal and his seconds are guilty of murder, and whether the seconds fight or not. H. P. C. 47, 51.

"If two persons quarrel over night, and appoint to fight the next day; or quarrel in the morning, and agree to fight in the afternoon; or such a considerable time after, by which it may be presumed the blood was cooled; and then they meet and fight a duel, and one kill the other, it is murder. 3 Inst. 52. H. P. Č. 48. Kel. 56. And whenever it appears, that he who kills another in a duel, or fighting on a sudden quarrel, was master of his temper at the time, he is guilty of murder: as if, after the quarrel, he fall into another discourse, and talk calmly thereon; or allege that the place where the quarrel happens is not convenient for fighting; or that his shoes are too high, if he should fight at present, &c. Kel. 56. 1 Lev. 180.

"If one challenge another, who refuses to meet him, but tells him that he shall go the next day to such a place about business, and then the challenger meets him on the road, and assaults the other; if the other, in this case, kill him, it will be only manslaughter; for here is no acceptance of the challenge, or agreement to fight; and if the person challenged refuseth to meet the challenger, but tells him that he wears a sword, and is always ready to defend himself, if then the challenger attack him, and is killed by the other, it is neither murder nor manslaughter, if necessary in his own defence. Kel. 56.

"If one kill another in a deliberate duel, under provocation of charges against his character and conduct, however grievous, it is murder in him and in his second; and therefore the bare incitement to fight, though under such provocation, is in itself a very high misdemeanor, though no consequence ensue thereon against the peace. 3 East's Rep. 581.

"An endeavor to provoke another to commit the misdemeanor of sending a challenge to fight, is itself a misdemeanor indictable, particularly where such provocation was given by a writing, containing libellous matter, and alleged to have been done with intent to do the party bodily harm, and to break the king's peace; the sending such writing being an act done towards procuring the commission of the misdemeanor meant to be accomplished. 6 East's Rep. 464."

The case, The King vs. Rice, in the Court of King's Bench, in 1803, cited above from East's Reports, is of interest, and follows at length. Rice was a lieutenant in the British navy, and was tried for having sent to a superior officer a letter in the nature of a challenge, in consequence of an offensive course of conduct pursued towards him while on duty. The case is curious, as being one of the very few in the annals of British jurisprudence in which any punishment has been inflicted for sending a hostile message. In this case, it may be conjectured that Rice was imprisoned and fined, not so much for "the intended violation of the peace," as for the actual breach of the rules of the naval service. The judgment of the Court was pronounced by Sir Nash Grose, Knight, who,

I

"in passing sentence upon the defendant, censured strongly several circumstances of provocation on the part of the prosecutor, which had led to the challenge given by the defendant. And as to the offence itself, he observed: This offence in modern times is so frequent, that it is become alarming to the public, and induces me to suspect that men either are not aware of the consequences the offence may lead to, or are become insensible to the mischiefs of them. That fighting a duel is a grievous breach of the peace is undoubted, and that it ought to be so considered is as clear; inasmuch as it may lead to one of the worst of crimes, murder; the murder of one probably, and possibly of more. lay stress upon the word murder, because I fear some are ignorant, and others will perversely not understand, that to kill a man in a duel amounts to the crime of deliberate murder, whether he that gave or he that accepted the challenge fall. To every lawyer this is a proposition perfectly clear; but that others who are not of the profession may as perfectly be assured of it, I will read only a passage or two from the most able writers upon the subject, to show that it is a doctrine not of modern date, but coeval with the first institution of our laws. By Sir Matthew Hale, as correct, as learned, and as humane a judge as ever graced a bench of justice, we find it laid down,* that if A challenge C to meet in the field to fight, and C decline it as much as he can, but is threatened by A to be posted for a coward, (an ingredient to be found, I fear, in this case in substance, though not in terms,) if he meet not; and thereupon A, and B his second, and C, and D his second, meet and fight, and Ĉ kill A; this is murder in C, and D his second, and so ruled in Taverner's case; † in which case, tried before this Court of King's Bench, in this place, it appeared that the deceased was the challenger, and that the prisoner accepted the challenge, as the case terms it, upon very forcible provocation. Sir Edward Coke, the Lord Chief Justice, laid down the law thus: This is a plain case, and without any ques

* 1 Hale's P. C. 452.

† 1 Rol. Rep. 360; 3 Bulstr. 171.

tion; if one kill another in fight, upon the provocation of him which is killed, this is murder.'* Of the same opinion were the rest of the Court. In this case, it is to be observed that the second, one Thomas Musgrave, as well as the principal, was indicted, and the second was outlawed. This precedent may well deter others from taking upon them so illegal and improper an office. And such has been the law recognized at different times down to the present moment, as we may observe by what is laid down by a very learned and able judge † of the last reign. His words are, that, in all possible cases, deliberate homicide upon a principle of revenge is murder; for no man under the protection of the law is to be the avenger of his own wrongs. If they are of such a nature, for which the laws of society will give him an adequate remedy, thither he ought to resort; but be they of what nature soever, he ought to bear his lot with patience, and remember that vengeance belongeth only to the Most High.' Then he goes on: Upon this principle, deliberate duelling, if death ensueth, is in the eye of the law murder; for duels are generally founded in deep revenge; and though a person should be drawn into a duel, not upon a motive so criminal, but merely upon the punctilio of what the swordsmen falsely call honor, that will not excuse; for he that deliberately seeketh the blood of another on a private quarrel, acteth in defiance of all laws, human and divine, whatever his motive may be.' Here, too, we may note this excellent man's opinion upon that punctilio of honor, by the rules of which some men affect to palliate, and others to justify, crimes of the blackest dye, the grossest frauds, gambling, seduction, adultery, murder. Such was and is the law of honor, and no man who will attend to the subject can doubt of it. In this case, if the prosecutor had not obeyed the law, by consulting his own honor, and not the false honor of swordsmen, and either party had fallen, the other would have undoubtedly been guilty of murder, and liable to an ignominious and fatal sentence: from which had it been his fortune to escape, either from absence of witnesses, or any other means that sometimes occur to cause a failure of public justice, the remainder of his life must have been clouded with the dreadful remembrance that, for the purpose of giving or receiving that miserable thing falsely called satisfaction, he had unnecessarily imbrued his hands in the blood of a brother officer. Fortunately for the defendant, that crime he has not to atone for; he is to receive sentence only for attempting to provoke a duel. The punishment for this offence, as a misdemeanor, is discretionary, and must be guided by such circumstances of aggravation or mitigation as are to be found in the offence.

"He then adverted to the particular circumstances of the case, amongst which were several of a nature to mitigate very materially the offence, accompanied by affidavits of the defendant's general merits as an officer from many respectable officers of the navy; though there still remained, as he observed, much for which atonement should be made to the public for the intended violation of its peace. Wherefore,

*

3 Bulstr. 172.

t Mr. Justice Foster in his Crown Law, 296.

upon the whole, the Court, taking into consideration the imprisonment already suffered by the defendant, (who had been brought up early in the term, and committed to custody in the mean time,) adjudged him to pay a fine of £100, and to be imprisoned for one calendar month, and at the expiration of that time to give security to keep the peace for three years, himself in £1,000, and two sureties in £250 each, and to be further imprisoned till such fine were paid and such securities given.”

No. V.

EXTRACT FROM THE SPECTATOR, No. 99.

THE great violation of the point of honor from man to man is giving the lie. One may tell another he whores, drinks, blasphemes, and it may pass unresented; but to say he lies, though but in jest, is an affront that nothing but blood can expiate. The reason perhaps may be, because no other vice implies a want of courage so much as the making of a lie; and therefore telling a man he lies, is touching him in the most sensible part of honor, and indirectly calling him a coward. I cannot omit under this head what Herodotus tells us of the ancient Persians, that from the age of five years to twenty they instruct their sons only in three things, to manage the horse, to make use of the bow, and to speak truth.

The placing of the point of honor in this false kind of courage has given occasion to the very refuse of mankind, who have neither virtue nor common sense, to set up for men of honor. An English peer, who has not been long dead,* used to tell a pleasant story of a French gentleman, that visited him early one morning at Paris, and, after great professions of respect, let him know that he had it in his power to oblige him; which, in short, amounted to this, that he believed he could tell his lordship the person's name who jostled him as he came out from the opera ; and before he would proceed, he begged his lordship that he would not deny him the honor of making him his second. The English lord, to avoid being drawn into a very foolish affair, told him he was under engagements for his two next duels to a

*It has been said that this was William Cavendish, the first Duke of Devonshire, who died August 18, 1707.