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standing waters, does not apply to rapid streams; and, as the name announces, ground ice really forms on the earth constituting the bed of the river, and there are few watermen or fishermen who cannot cite numerous cases of which they were eye-witnesses, having seen masses rise from the bottom to the surface, even from rivers of considerable depth.
In the winter of 1823, the canal of St. Alban, which conducts the waters of the river to Basle, bore a considerable quantity of ground ice. The transparency of the water was such as to allow of objects being seen three feet in depth. The bed of the canal at that part is covered by round pebbles. Wherever at the bottom of the water a projection occurred, either in deep or shallow parts, morsels of ice, in bundles, could be discovered, which, at a distance, appeared as collections of cotton flocks. In many places, the bottom was almost covered by similar flocks, which separated from time to time, and came to the surface of the stream, here very rapid. These flocks, when taken from the bottom, had exactly the same appearance as the ground ice which floated in abundance on the surface, and were composed, like it, of small plates of ice, rounded and agglomerated, so that no doubt could exist as to the similarity of origin. The particular and uniform arrangement of the ice at the bottom of the water did not permit the supposition that it had been precipitated from the surface.
M. Merian then endeavours to explain the effect by considering the water, though cooled at the surface by atmospheric cold, so mixed by its running motion and by the wind, as to have an equable temperature throughout, notwithstanding the difference of specific gravity between water at 40° and 32°. Thus the temperature of the bottom and the surface are rendered the same, and in this state, he considers the prominent bodies fixed at the bottom as offering points of attachment for the ice to be formed upon much more advantageous than the agitated surface, and this, in addition to their influence as nuclei of crystallization, as sufficient to determine the formation of ice there. The water, therefore, becomes ice in these situations, and especially in those places where projection offers shelter from the impetuosity of the current. The continued motion of the water prevents the formation of large masses, just as saline solutions, when stirred, deposit small crystals, and in consequence, only agglomerations of small plates are formed. When of a certain size, the force of the current and their lightness, causes their separation, and rise to the surface, bearing up, frequently, portions of earth and small stones.
M. Merian then collects together and compares the evidence of preceding writers, at length, but finds nothing which is inexplicable, or in discordance with the circumstances under which this theory explains the formation of ground ice. [Bib. Univ.
SELECTED FOR THE MUSEUM,
The British Code of Duel: a reference to the Laws of Honour
and the Character of Gentlemen. London, 1824. It may be as well to premise in the outset, that of the contents of this book we have no concern with any other part than that which is comprised in the title-page, the reason of which exclusive preference can only be thoroughly understood by means of a reference to the volume itself.
If a law-giver were to decree that whenever a theft was committed, and a complaint made to the proper authority, the robber and the party robbed should draw lots, and that he who drew the shortest should be hanged, the means would not appear very happily adapted to the end of repressing theft. Yet the principle of this method of decision, is the very one on which the ancient trial by battle, long considered a very admirable institution, must in reality have depended. The above method, however, of repressing theft has this advantage over the battle and the duel, that it is governed purely by chance, which in one particular at least resembles justice, viz. in being blind, that is in having no preconceived bias towards either of the litigant parties, whereas the two latter institutions depend, in a great measure, upon skill, which goes a great way towards securing success to him who happens to possess it. But although this principle of chance was that which in reality determined the result in the battle and the duel, excepting in so far as the equity of its decisions was disturbed by the unequal skill of the parties, yet we must do our ancestors the justice to remark, that they erected the institụtion upon a foundation, the solidity of which was never suspected in their days, and which, if solid, would not only justify the institution, but would show that no other method of deciding disputes between man and man ought ever to have been adopted.
Our ancestors thought, and the opinion seems to be very universal and natural, an idolon tribus, according to Lord Bacon's classification, that those apparently irregular phenomena, which an ample and scientific experience has now shown to be only particular cases of invariable laws, were the effects of particular interpositions of the Deity, and that as the Deity must love virtue, and hate vice, he would on every occasion take care to adapt the succession of physical events according to the moral exigencies of the ease. This was unquestionably the original ground on which men believed that knotty questions of fact might be conveniently cut by the sword instead of being slowly and painfully solved by the ordinary operations of judicature. This ground, however, has slipped away from under our feet, and if the practice of duelling is to stand at all, some other must be found on which it may be restec.
Accordingly we no longer hear, among those who profess to reason on the subject, of washing out the imputation of dishonour in
the blood of the slanderer, but we are told that the reciprocal right to challenge and liability to be challenged, are the sufficient reason of all the polish and decorum which are to be found in our manWe remember to have read at school that
-Ingenuas didicisse fideliter artes
Emollit mores, nec sinit esse feros : but at the time we no more suspected than the benighted heathen who wrote the lines, that to snuff a candle at twelve paces was one of those ingenuous arts to which such good effects are to be attributed-and even now, after all our experience of the world, we feel ourselves compelled to dissent from that opinion, and we propose to lay before our readers the reasons of our dissent. We consider the question as now ripe for discussion. As long as we are told that the honour of a gentleman is in his own keeping and can only be vindicated by his own right hand, &c., &c., our inability to apprehend the sense of the propositions prevents us from grappling with them. But when we hear of means and an end, we begin to scent our quarry; means and an end are the very things we delight in, for if we have any skill at all, it consists in the adaptation of the one to the other.
Refinement of manners, then, being the end, the question is, whether the custom of duelling be the best means of attaining it.
The circumstance that most forcibly strikes us at first sight, in considering this custom, is, that it is not an artificial device, by which the natural disposition of men is to be moulded to beneficial purposes, but, pro tanto, a recourse to a savage state; it looks like a rude and desert spot in the very midst of the garden of civilization, where
Inter nitentia cultu
Infelix lolium, et steriles dominantur avenæ. It involves a confession that there are certain injuries for which the wisdom of civilized men is incapable of finding an adequate remedy, and which must, therefore, be left to the operation of those vindictive feelings which nature has implanted in the hearts of the human race. All that has been done by design and reflection has been, to impose a check, to hang a weight upon the springs, whose elasticity puts the system in action. For there is no doubt that the savage man would maim or slay whomsoever should affront him, without thinking it necessary to expose himself to the hazard of the same calamities; whereas, under the system of duelling, no man is entitled to what is called satisfaction, without tendering the same satisfaction (which we believe, however, is not then called by the same name) to his adversary. It cannot fairly be denied that this is a check and a very powerful one, but of what nature? The framers of the mutiny act have determined, that if a plaintiff bring an action for any thing done under the authority of that act, and fail to recover, he shall pay treble costs to the defendant. The object of this is, of course, to separate those cases where the plain. tiff has a just cause of complaint, from those in which he has not; to leave him at liberty to pursue his course with regard to the first set of cases, and to deter him from pursuing it, with regard to the second set. But, suppose the provision had been, that the plaintiff should be exposed to an even chance of paying treble the costs to the defendant, whether he made out his case or not, it is manifest that such an indiscriminate restriction could only be defended on the ground that the right to sue generally produced more evil than good, and consequently that an absolute prohibition would be still better than a partial restriction. So it is with the check upon the privilege of shooting at men; let the insult be never so grievous and severe and public, he who receives it shall have no chance of punishing the offender unless he submits himself to the same chance of punishment. We, who think it inexpedient that men should be allowed to fire with ball at those who have hurt their feelings, of course approve of the check, and only find fault with it, because it is not powerful enough to extinguish the practice altogether: but it is perfectly obvious that whoever does approve of the check, cannot also approve of that which is to be checked, indiscriminately checked, be it observed, not checked in its worst part and unchecked in its best. Yet obvious as it is, we doubt whether among the admirers of the duel, any one can be found so daringly consistent, as to defend the unrestrained privilege of maiming and murdering. The cause of this inconsistency is not difficult to discover; the restricted privilege is veiled by the prejudice belonging to whatever has been long established, the unrestricted privilege has no such misty disguise to conceal its natural enormity. It should, of course, be borne in mind, that our arguments have reference to the principles on which the duel is now supported, not to those on which it was originally instituted.
But now let us examine upon what pretence it is, that we in the nineteenth century are driven back, as far as regards the subject of insults, to the savage state, and are obliged to allow every man to protect himself with his own hand. It happens, unfortunately, that there is not extant any systematic defence of the duel. The surface of the subject has been skimmed and grazed by the writers in the periodical papers, but nothing like analysis, so far as we have seen, has ever been applied to it: all that can be done, therefore, is to furnish an answer to such desultory arguments as we have met with in the above mentioned works or in conversation, and to such as have suggested themselves, as in any degree plausible, to our own minds.
It is said, in the first place, that insults ought to be repressed, and that the institution, or custom rather, of duelling, is a method, and the only method, of repressing them.
The advocates for duelling seem to admit, that if insults could be subjected to the same course of adjudication as other crimes*
. We have considered an insult as a species of crime, which though not consonant to common phraseology, is perfectly consistent with logical precision, for,
are subjected to, the extraordinary and anomalous method of punishing them by duel would be superfluous, and indeed it is too clear to admit of dispute, that if an insult could be punished as a forgery is punished, there could be no reason why an insult should also be punished by duel, which would not also prove that a forgery ought to be so punished.
If, then, it can be shown, that all the arguments which tend to prove that an insult is an improper subject for ordinary criminal jurisprudence, tend to prove, a fortiori, that it is an improper subject for a duel, it should seem that a complete answer is given to all such arguments.
Now, the reason usually given why an insult is an improper subject for criminal procedure is this-an insult, it is said, is, in a great measure, incapable of definition and of proof: which circumstances would make it so difficult for the tribunal to which the question is referred to determine, whether any insult has been offered, and if any, of what degree, that its decisions would, by their absurdity and iniquity, produce more mischief than they would remedy.
Now, these reasons, we say, apply a fortiori, against the system of duelling, for by that system the determination of the question, has any insult been offered? and if any, of what degree? is, indeed, taken away from the cognizance of the tribunal said to be incompetent to determine it, but for the purpose of referring it to the person whom all mankind, from the first dawn of legislation, have declared to be the most unfit to decide it, namely, the person who asserts himself to be insulted.
Why is it that, when a robbery is supposed to have been committed, we do not allow the accuser to pronounce the guilt of the accused? Because he being the most interested in the question, is of all men the most unfit to decide it, even though, as in this case of a robbery, it should be a fact about which no mistake is Jikely to exist in the mind of the party; much more, then, is a man incompetent to decide, whether he has been so insulted as to justify him in challenging the party accused, because an insult is incomparably less definite in its nature than a robbery, and be cause the judgment of the accuser is inevitably disturbed by the irritation of his feelings on the one hand, and by the apprehension of the danger to which he must expose himself on the other.
It is then quite idle and beside the purpose to insist that, if insults were subjected to criminal procedure, the innocent would so often be punished, the guilty would so often escape, or be punished too much, or too little; that it is better to leave these actions unrepressed than to endeavour to repress them in this way; it is quite idle, we say, thus to insist, unless the advocate for the duel were prepared further to show, what no one has ever attempted, that an insult is an action productive of evil, and, as such, ought to be repressed, is a proposition that will be admitted as well by the defenders as the impugners of duelling.