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XXIII. ON DUELING.—Eliphalet Nott. Life is the gift of God, and it never was bestowed to be sported with. To each, the Sovereign of the universe has marked out a sphere to move in, and assigned a part to act. This part respects ourselves not only, but others also. Each lives for the benefit of all. As in the system of nature, the sun shines not to display its own brightness and answer its own convenience, but to warm, enlighten and bless the world; so in the system of animated beings, there is a dependence, a correspondence, and a relation, through an infinitely extended, dying and reviving universe—" in which no man liveth to himself, and no man dieth to himself." Friend is related to friend; the father to his family; the individual to community,—to every member of which, having fixed his station and assigned his duty, the God of nature says, “ Keep this trust-defend this post.” For whom? For thy friends, thy family, thy country. And having received such a charge, and for such a purpose, to desert it is rashness and temerity.
Since the opinions of men are as they are, do you ask, how you shall avoid the imputation of cowardice, if you do not fight when you are injured ? Ask your family how you will avoid the imputation of cruelty; ask your conscience how you will avoid the imputation of guilt: Ask God how you will avoid his malediction, if you do? These are previous questions. Let these first be answered, and it will be easy to reply to any which may follow them. If you only accept a challenge, when you believe, in your conscience, that dueling is wrong, you act the coward. The dastardly fear of the world governs you. Awed by its menaces, you conceal your sentiments, appear in disguise, and act in guilty conformity to principles not your own, and that too in the most solemn nioment, and when engaged in an act which exposes you to death. But if it be rashness to accept, how passing
rashness is it, in a sinner, to give a challenge? Does it become him, whose life is measured out by crimes, to be extreme to mark, and punctilious to resent whatever is amiss in others? Must the duelist, who now disdaining to forgive, so imperiously demands satisfaction to the uttermost-must this man himself, trembling at the recollection of his offenses, presently appear a suppliant before the mercy-seat of God ? Imagine this, and the case is not imaginary, and you cannot conceive an instance of greater inconsistency, or of more presumptuous arrogance. Therefore “avenge not yourselves, but rather give place unto wrath; for vengeance is mine, I will repay, saith the Lord.” Do you ask, then, how you shall conduct towards your enemy, who hath lightly done you wrong? If he be hungry, feed him ; if naked, clothe him ; if thirsty, give him drink. Such, had you preferred your question to Jesus Christ, is the answer he had given you; by observing which, you will usually subdue, and always act more honorably than your enemy.
XXIV. ERSKINE FOR CUTHELL, IN AN INDICTMENT FOR LIBEL.
It is contended by Mr. Erskine that a man is liable for his agents in CIVIL CASES, but that CRIMES must from necessity be personal and can only admit of punishment on that ground. The following is Mr. E's clear and unanswerable statement. It has force, clearness, unity and conciseness.
Gentlemen-In the case of a civil action, throughout the whole range of civil injuries, the master is always civiliter answerable for the act of his servant or agent; and accident or neglect can therefore be no answer to a a plaintiff, complaining of a consequential wrong. If the driver of a public carriage maliciously overturns another upon the road whilst the proprietor is asleep in his bed at a hundred miles distance, the party injuring must unquestionably pay the damages to a farthing; but though such malicious servant might also be indicted and suffer an infamous judgment, could the master also become the object of such a prosecution? CERTAINLY NOT.-In the same manner, partners in trade are civilly answerable for bills drawn by one another, or by their agents, drawing them by procuration, though fraudulently, and in abuse of their trusts; but if one partner commits a fraud by forgery or fictitious indorsements, so as to subject himself to death, or other punishment by indictment, could the other partners be indicted?—To answer such a question here, would be folly ; because it not only answers itself in the negative, but exposes to scorn every argument which would confound indictments with civil actions.
Why then is printing and publishing to be an exception to every other human act? Why is a man to be anawerable criminaliter for the crime of his servant in this instance more than in all other cases? Why is a man who happens to have published a libel, under circumstances of mere accident, or, if you will, from actual carelessness or negligence, but without criminal purpose, to be subjected to an infamous punishment, and harangued from a British bench as if he were the malignant author of that which it was confessed before the court delivering the sentence, that he never had seen nor heard of ? As far, indeed, as damages go, the principle is intelligible and universal ; but as it establishes a crime, and inflicts a punishment which affects character and imposes disgrace, it is shocking to humanity and insulting to common sense.
The court of King's Bench, since I have been at the bar (very long, I admit, before the Noble Lord presided in it, but under the administration of a truly great judge,) pronounced the infamous judgment of the pillory on a most respectable proprietor of a newspaper, for a libel on the Russian Embassador, copied too out of another paper, but which I myself showed to the court, by the
affidavit of his physician, appeared in the first as well as in the second paper, whilst the defendant was on his sick-bed in the country, delirious in a fever. I believe that affidavit is still on the files of the court.-I have thought of it often—I have dreamed of it, and started from my sleep-sunk back to sleep, and started from it again. The painful recollection of it I shall die with. How is this vindicated ? From the supposed necessity of the case.-An indictment for a LIBEL is, therefore considered to be anomaly in the law.-It was held so undoubtedly; but the exposition of that error lies before me; the Libel Act lies before me, which expressly, and in terms, directs that the trial of a libel shall be conducted like every other trial for any other crime ; and that the jury shall decide, not upon the mere fact of printing or publishing, but upon the whole matter put in issue, i. e. the publication of the libel with THE INTENTIONS CHARGED BY THE INDICTMENT.--This is the rule by the Libel Act; and you the jury, as well as the court, are bound by it.
CURRAN'S REMARKS ON THE WITNESS ARMSTRONG, IN
THE TRIAL OF HENRY AND JOHN SEARES, INDICTED FOR HIGH TREASON.
Gentlemen-Suppose the prisoners, (if the evidence were true,) did compass the king's death, what are you to found your verdict upon? Upon your oaths :--what are they founded upon ? Upon the oath of the witness :-and what is that founded upon? Upon this, and this only, that he believes there is a just and omnipotent God, an intelligent Supreme existence, who will inflict eternal punishment for offenses, or confer eternal rewards upon man, after he has passed the boundary of the grave.
What is the law of this country? If the witness does not believe in God or a future state, you cannot swear him. What swear him upon ? Is it upon the book or the leaf?--You might as well swear him by a bramble or a coin. The ceremony of kissing, is only the external symbol by which man seals himself to the precept, and says " May God so help me as I swear the truth.” He is then attached to the divinity upon the condition of telling truth, and he expects mercy from heaven, as he performs his undertaking. But the infidel !--By what can you catch his soul--or by what can you hold it. You repulse him from giving evidence-for he has no conscience. No hope to cheer him—no punishment to dread :—What is the evidence of the witness Armstrong, touching that unfortunate man? What said his own relation, Mr. Shervington ? He had conversed with him freely—he had known him long. What kind of character did he give him ? Paine was his creed and his philosophy. Mr. Shervington tells you he had drawn his maxims of politics from Paine—and that his ideas of religion were adopted from the vulgar maxims of the same man—from that most abominable of all tracts, the “ Age of Reason."
You have heard the evidence of the politics and the religion of the witness in detail, in the words of Armstrong himself. Listen to the words which Shervington swears Armstrong used to him. “Do you wish to know my sentiments—1 have learned them from Paine.--I do not love a king. I swear by the sacred Missal of Paine, I would think it a meritorious thing to plunge a dagger into the heart of George the third, because he is my king—though I had devoted to him a soul which Mr. Paine says, (truly no doubt) I have not to lend.” Are these the casual effusions of a giddy young man not considering the meaning of what he said? If it were said among a parcel of boarding school misses, where he might think he was giving specimens of his courage by nobly denying religion, there might be some excuse. There is a latitude assumed upon such occasions. A little blasphemy and a little obscenity, passes for wit in