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that by means of duelling, fewer innocent persons would be punished, fewer guilty persons would escape or be punished too much or too little.
In our experience we have generally remarked, that when the controversy has reached this point, the ground is shifted, and it being impossible to deny the defects of the duelling system) it is said that with all its defects, it is still better to submit to it than to suffer insults to go unpunished.
What is this but to run upon the other horn of the dilemma?
The dilemma when stated in form is this: if duelling produces a balance of evil, it ought to be abolished; if duelling produces a balance of good, criminal procedure, as has been shown, would produce a still greater balance of good; therefore still duelling ought to be abolished. This is the dilemma, and we should like to see in what way perverted ingenuity can escape from it.
Moreover, besides those arguments which apply in a stronger degree to the extraordinary, and in a weaker degree to the ordinary method of punishment, there are some which apply in the strongest degree to the extraordinary, and to the ordinary not at all. These reasons are drawn from the nature of the punishment.
It is very obvious, that, supposing the abstract offence to be once defined, and the particular offence to be once proved, it is not difficult so to manage matters in a court of justice as that the punishment shall fall upon the offender, and not upon some other person, and shall fall upon him with a degree of severity proportioned to the nature of the offence. Whereas in the system of duelling, when the existence of a corpus delicti has been established by the verdict of the temperate and impartial tribunal above mentioned, viz., the accuser himself, we are not much nearer the object in view, that is the adequate punishment of the offender, than before. No doubt, to those who admire the constitution of the tribunal, the manner in which the punishment is adapted to the offence, must be a new and very copious source of admiration: to others it may, perhaps, seem that a punishment varying from zero through all the gradations of personal injury up to death, not, be it observed, according to the nature of the crime, but according to extraneous circumstances which bear not the remotest relation thereto, and falling, in at least one out of two cases, not upon the criminal, but the party aggrieved, is no very happy effort of human wisdom.
To be serious, is it not manifest that if a description of this institution were to be found in a grave work on jurisprudence, it could only escape from contempt, by exciting the indignation of the reader? Yet this compound of absurdity, iniquity, and atroeity, by favour of such sounding names as honour and chivalry, passes with those who will not analyze their opinions, for one of the bulwarks of civilized society.
From what has been said, we hope it sufficiently appears that is, VOL. VII. No. 40.-Museum.
any balance of good above evil is produced by duelling, that very circumstance proves irresistibly that a still greater balance must needs be produced by punishment in the ordinary course of criminal jurisprudence, so that there can be no necessity for having recourse to this anomalous mode of retribution. But we think it will not be difficult to show that no balance of good, but on the contrary a balance of evil, is produced by duelling, and consequently that it ought to be abolished, even though no other means could be devised for putting a stop to the actions which it professes to repress.
In estimating the evil effects of duelling one important consideration is commonly left entirely out of the account, namely, the tendency which it has to aggravate the very evils it is intended to repress. For the quantity of pain which one man can inflict upon another by an insult where duelling is not permitted, is in reality very minute compared with the quantity of pain which one man can inflict upon another by an insult where duelling is established. Let any one calmly consider the misery a man may be subjected to by any given insult (by being called a liar for example) taken by itself, and then let him contrast it with that which a man may be made to undergo by the same insult aggravated by the consequences which are attached to it by the system of duelling. To any man the consequence may be death, to the man who conscientiously shrinks from the wanton shedding of human blood, the intolerable burden of ignominy or of remorse. The man who is constitutionally timid, the weakness of whose individual character most especially requires the protection of the public, is delivered up a prey to his oppressor; while the man of ferocious courage and skill at his weapon is invested with a power over the destinies of his fellow creatures, similar to that which the man of physical strength enjoys in savage life, and which none could enjoy in civilized life if the custom of duelling did not prevail.
The result of this comparison may be made still more plainly apparent, by instituting it in a specific case, of which actual expérience may be had in the present state of society.
Contrast, we say to the admirer of the duel, contrast the pain of receiving an insult from a clergyman with the pain of receiving one from a military officer. In the former case you need not challenge the wrong-doer, and if you do, he needs not fight: in the latter case, you must challenge the wrong-doer, and he must fight, so says the code of honour. In the first case, then, you have the evil alone, in the second, the evil with its remedywhich is the worst?
Here again we are come to a dilemma, for though it be perfectly clear what reply a candid and reasonable man must give to our question, yet, for the purposes of the argument, it matters not in the least which way it is answered. If you say the evil alone is worse than the evil together with its remedy, then you cannot also say that a duel is such an object of terror that men are thereby deterred from insulting their fellows, and you give up the only ground on which the defence of duelling rests. If you say the evil together with its remedy is worse than the evil alone, you admit the conclusion we are now contending for, namely, that duelling aggravates the very evils it is intended to repress.
To avoid the possibility of mistake, we wish it to be understood that we do not mean to deny, that by the custom of duelling a certain motive is presented to abstain from insult, which but for that custom would not exist: what we have been endeavouring to show is that, on the other hand the evil of being insulted is multiplied manifold, whence it follows that the motives to inflict insult are also multiplied.
This inference, if it be not already perfectly evident, may be made so by the following illustration :
It is not uncommon to hear the unnecessary trouble and expense of law proceedings defended on the ground that they have a tendency to discourage vexatious litigation, and certainly they do present one motive to abstain from vexatious litigation which would not otherwise exist. But, on the other hand, they enormously increase the motives which stimulate to such litigation, for if the trouble and expense of law-suit were nothing, the motives to inflict a vexatious law-suit would be nothing: as you increase the one, you necessarily increase the other. In like manner if the pain of being insulted were nothing, the motives to inflict insult would be nothing, and as you increase the one you necessarily increase the other.
But further, though it has been admitted that the fear of a challenge does operate as a restraining motive, it can be proved that it only does so by disturbing the effect of a much more constant, efficacious, and innocuous motive. For there is in civilized so. ciety a force which, when undisturbed by prejudices, is fully competent to produce, in the greatest degree, that object which the duel is vainly intended to produce; to which force also, be it observed, the duel owes all the efficacy which it can be supposed to possess; we mean, of course, the force of public opinion. It is the terror of general disapprobation which really creates whatever of refinement is to be found in our manners, not the terror of wounds or death, for these the offender can avoid if he pleases, but he can only avoid them by encountering the more dreadful punishment of ignominy, which few indeed can bring themselves to endure. Can it be doubted that if the punishment of ignominy fall at once upon the man who offers an insult (as, but for the practice of duelling, it most assuredly would fall), its efficacy would be far greater in repressing insults, than when it falls only (as it does under the duelling system) upon him who offers an insult and refuses to give satisfaction if required, and upon him who receives an insult and fails to demand satisfaction. All the instances in which rudeness is now restrained by the fear of a duel are so many proofs of the omnipotence of public opinion; for what else
compels a man to the alternative of curbing his insolence, or ex.
posing his life?
It may make this matter clearer to consider a hypothetical
Suppose, then, two nations having both reached such a degree of refinement that the behaviour of a man who should call another a liar would be generally considered very offensive. Suppose further that the custom of duelling did not exist in the one and did exist in the other. If a man felt that he could endure ignominy, he might give the lie without restraint in either society. But if, which is the far more common case, he felt that he could not endure ignominy, then in the first society he must of necessity abstain from giving the lie, for there is nothing in such a society which can prevent the public disapprobation from falling upon him if he does not abstain, just as it falls in the actual state of society in England, upon all those whose offences are not punishable by duel. But in the second society, the man who does not encounter ignominy may nevertheless gratify the brutal insolence of his disposition, provided he dares to encounter personal danger; he has even a great chance of escaping both ignominy and danger if he choose well the object of his attack. Therefore, as the efficacy of punishment is, cæteris paribus, in proportion to its certainty, it seems impossible to escape from the conclusion that there would be fewer instances of the lie given in the first society, than in the last. It is indeed difficult to conceive how the character of a bully, in all its shades and degrees, would be an object of ambition to any one, in a country where the law is too strong to suffer actual assaults to be committed with impunity, where public opinion is powerful, and duelling not permitted; but, where duelling is in full vigour, it is very easy to understand that the bully may not only enjoy the delight of vulgar applause, but the advantages of real power.
This view of the subject appears to us to exhibit so distinctly, that the efficacy of duelling (abstracting from the mischiefs it produces directly) is nothing more than the weakened and diverted efficacy of public opinion,
that at the risk of being tedious we shall repeat the argument over again in a general form, thus:
If a man fears not the disapprobation of the society in which he lives, the custom of duelling cannot prevent him from insulting whomsoever he pleases, for there is no process, save the public censure, by which he can be compelled to fight.
If a man does fear the disapprobation of the society in which he lives, he would be more effectually restrained from insulting others if that disapprobation were the direct and inevitable consequence of such a proceeding, than when it is only the remote and uncertain consequence.
The disapprobation of the society is only the remote and uncertain consequence of offering an insult under the system of duelling, for the offender may at his
pleasure commute it into personal danger, and has some chance of escaping it without any commutation, and even throwing it upon the injured party.
If the system of duelling did not exist, the disapprobation of the society would be the direct and inevitable consequence of offering an insult; for it is necessarily admitted by our opponents, that an insult is a hurtful action, and we see that upon all those hurtful actions to which the duel is not applied, the disapprobation of the society does fall with undivided force; it falls too even upon those hurtful actions to which the duel is in general applied, when they are performed by a class of persons privileged from challenge. Thus if a churchman is guilty of a gross insult, the weight of the public censure falls with undivided force upon him, his character suffers severely, and by the frequent repetition of such conduct would be utterly destroyed-while that of the injured party is held in the same estimation as it was before the affront. It seems impossible to assign any reason why the same punishment should not fall upon every one who offends in the same way, if the public censure were not diverted from its proper object by the institution of the duel.
Let us imagine that a Chinese, who had been some time resident in this country, were thus to address an Englishman:
“I have not failed to remark, since I came to England, that many gross actions and expressions, which in my own country are common among all ranks, are here confined to the lowest orders, and I am informed that any person belonging to the superior classes of society, who should so far forget his good breeding as to be guilty of such actions or expressions, would immediately forfeit his right to be admitted into the company of his cquals. Yet I was present some time ago at a party, where, in the heat of a dispute, one person gave another very plainly to understand, that he doubted the truth of an assertion which the latter had made. I could perceive by the altered countenance of the person so addressed, that a great breach of good manners had been committed, and indeed the cheerfulness of the whole company was in a great measure subdued, and notwithstanding the efforts made by the master of the house, was never effectually revived during the evening. Yet to my great astonishment, I have since found, that the culprit is received in the same houses, and treated with the same respect as before. This anomaly has puzzled me extremely, and I should be much obliged to you to explain it to me.”
The difficulty of the Chinese would, as it appears to us, be most natural and reasonable; the Englishman would, indeed, be able to explain it by unfolding to him the system of duelling and its consequences, that is, by pointing out to him that the disapprobation which would naturally have fallen upon the offender, was diverted by this institution, and discharged upon the person who had failed to resent and to avenge the affront; in no other way would it be possible to account for so extravagant an aberration of public censure.