XXII THE INSTITUTION OF THE DUELLO

WHEN Arthur Brent had read Edmonia’s letter, he mounted Gimlet and rode away with no purpose except to think. The letter had revealed some things to him of which he had not before had even a suspicion. He understood now why Madison Peyton had been so anxious to become Dorothy’s guardian and so angry over his disappointment in that matter. For on the preceding evening Archer Bannister had ridden over from the Court House to tell him of Peyton’s offensive words and to deliver the letter of apology into his hands.

“I don’t see how you can challenge him after that” said Archer, with some uncertainty in his tone.

“Why should I wish to do so?” Arthur asked in surprise. “I have something very much more important to think about just now than Madison Peyton’s opinion of me. You yourself tell me that when he was saying all these things about me, he only got himself laughed at for his pains. Nobody thought the worse of me for anything that he said, and certainly nobody would think the better of me for challenging him to a duel and perhaps shooting him or getting shot. Of course I could not challenge him now, as he has made a written withdrawal of his words and given me an apology which I am at liberty to tack up on the court house door if I choose, as I certainly do not. But I should not have challenged him in any case.”

“I suppose you are right,” answered Archer; “indeed I know you are. But it requires a good deal of moral courage—more than I suspect myself of possessing—to fly in the face of Virginia opinion in that way.”

“But what is Virginia opinion on the subject of duelling, Archer? I confess I can’t find out.”

“How do you mean?” asked the other.

“Why, it seems to me that opinion here on that subject is exceedingly inconsistent and contradictory. Dorothy once said, when she was a child,”—there was a world of significance in the past tense of that phrase—“that if a man in Virginia fights a duel for good cause, everybody condemns him for being so wicked and breaking the laws in that fashion; but if he doesn’t fight when good occasion arises, everybody calls him a coward and blames him more than in the other case. So I do not know what Virginia opinion is. And even the laws do not enlighten me. Many years ago the Legislature adopted a statute making duelling a crime, but I have never heard of anybody being punished for that crime. On the contrary the statute seems to have been carefully framed to prevent the punishment of anybody for duelling. It makes a principal in the crime of everybody who in any capacity participates in a duel, whether as fighter or second, or surgeon or mere looker on. In other words it makes a principal of every possible witness, and then excuses all of them from testifying to the fact of a duel on the ground that to testify to that fact would incriminate themselves. I saw a very interesting farce of that sort played in a Richmond court a month or so ago. Are you interested to hear about it?”

“Yes, tell me!”

“Well, Mr. P.”—Arthur named a man who has since become a famous judge—“had had something to do with a duel. As I understand it he was neither principal nor second, but at any rate he saw the duel fought. The principals, or one of them, had been brought before the judge for trial, and Mr. P. was called as a witness. When a question was put to him by the judge himself, Mr. P. replied: ‘I am not a lawyer. I ask the privilege of consulting counsel before answering that question.’ To this the judge responded: ‘To save time Mr. P., I will myself be your counsel. As such I advise you to decline to answer the question. Now, as the judge of this court, and not in my capacity as your counsel, I again put the question to you and require you, under penalty of the law to answer it.’ Mr. P. answered: ‘Under advice of counsel, your Honor, I decline to answer the question.’ The judge responded: ‘Mr. Sheriff, take Mr. P. into custody. I commit him for contempt of court.’ Then resuming his attitude as counsel, the judge said: ‘Mr. P., as your counsel I advise you to ask for a writ of Habeas Corpus.’

“ ‘I ask for a writ of Habeas Corpus, your Honor,’ answered P.

“ ‘The court is required to grant the writ,’ said the judge solemnly, ‘and it is granted. Prepare it for signature, Mr. Clerk, and serve it on the sheriff.’

“The clerical work occupied but a brief time. When it was done the sheriff addressing the court said: ‘May it please your Honor, in obedience to the writ of Habeas Corpus this day served upon me, I produce here the body of R. A. P., and I pray my discharge from further obligation in the premises.’

“Then the judge addressed the prisoner, saying: ‘Mr. P. you are arraigned before this court, charged with contempt and disobedience of the court’s commands. What have you to say in answer to the charge?’ Then instantly he added: ‘In my capacity as your counsel, Mr. P., I advise you to plead that the charge of contempt which is brought against you, rests solely upon your refusal to answer a question the answer to which might tend to subject you to a criminal accusation.’

“ ‘I do so make my answer, your Honor,’ said Mr. P.

“ ‘The law in this case,’ said the judge, ‘is perfectly clear. No citizen can be compelled to testify against himself. Mr. P., you are discharged under the writ. There being no other testimony to the fact that the prisoners at the bar have committed the crime charged against them, the court orders their discharge. Mr. Clerk, call the next case on the calendar.’[B] Now wasn’t all that a roaring farce, with the judge duplicating parts after the ‘Protean’ manner of the low comedians?”

“It certainly was,” answered young Bannister. “But what are we to do?”

“Why, make up your minds—or our minds I should say, for I am a Virginian now with the best of you—whether we will or will not permit duelling, and make and enforce the laws accordingly. If duelling is right let us recognize it and put an end to our hypocritical paltering with it. I’m not sure that in the present condition of society and opinion that would not be the best course to pursue. But if we are not ready for that, if we are to go on legislating against the practice, for heaven’s sake let us make laws that can be enforced, and let us enforce them. The little incident I have related is significant in its way, but it doesn’t suggest the half or the quarter or the one-hundredth part of the absurdity of our dealing with this question.”

“Tell me about the rest of it,” responded Archer, “and then I shall have some questions to ask you.”

“Well, as to the rest of it, you have only to look at the facts. Years ago the Virginia Legislature went through the solemn process of enacting that no person should be eligible to a seat in either house of our law making body, who had been in any way concerned in a duel, either as principal or second, since a date fixed by the statute. If that meant anything it meant that in the opinion of the Legislature of Virginia no duellist ought to be permitted to become a lawgiver. It was a statute prescribing for those who have committed the crime of duelling precisely the same penalty of disfranchisement that the law applies to those who have committed other felonies. But there was this difference. The laws forbidding other felonies, left open an opportunity to prove them and to convict men of committing them, while the law against duelling carefully made it impossible to convict anybody of its violation. To cover that point, the Legislature enacted that every man elected to either house of that body, should solemnly make oath that he had not been in any wise engaged in duelling since the date named in the statute. Again the lawgivers were not in earnest, for every year since that time men who have been concerned in duelling within the prohibited period have been elected to the Legislature; and every year the Legislature’s first act has been to bring forward the date of the prohibition and admit to seats in the law making body all the men elected to it who have deliberately defied and broken the law. It deals in no such fashion with men disfranchised for the commission of any other crime. Is not all this in effect an annual declaration by the Legislature that its laws in condemnation of duelling do not mean what they say? Is it not a case in which a law is enacted to satisfy one phase of public sentiment and deliberately nullified by legislative act in obedience to public sentiment of an opposite character?”

“It certainly seems so. And yet I do not see what is to be done. You said just now that perhaps it would be best to legalize duelling. Would not that be legalizing crime?”

“Not at all. Duelling is simply private, personal war. It is a crime only by circumstance and statute. Under certain conditions such war is as legitimate as any other, and the right to wage it rests upon precisely the same ethical grounds as those upon which we justify public, national war. In a state of society in which the law does not afford protection to the individual and redress of wrongs inflicted upon him, I conceive that he has an indisputable right to wage war in his own defence, just as a nation has. But we live in a state of society quite different from that. If Madison Peyton or any other man had inflicted hurt of any kind upon me, I could go into court with the certainty of securing redress. I have no right, therefore, to make personal war upon him by way of securing the redress which the courts stand ready to give me peaceably. So I say we should forbid duelling by laws that can be enforced, and public sentiment should imperatively require their enforcement. Till we are ready to do that, we should legalize duelling and quit pretending.”

“After all, now that I think of it,” said young Bannister, “most of the duels of late years in Virginia have had their origin in cowardice, pure and simple. They have been born of some mere personal affront, and the principals on either side have fought not to redress wrongs but merely because they were afraid of being called cowards. You at least can never be under any necessity of proving that you are not a coward. The people of Virginia have not forgotten your work at Norfolk. But I’m glad Peyton apologized. For even an open quarrel between you and him, and especially one concerning Dorothy, would have been peculiarly embarrassing and it would have given rise to scandal of an unusual sort.”

“But why, Archer? Why should a quarrel between him and me be more productive of scandal than one between any other pair of men? I do not understand.”

“And I cannot explain,” answered the other. “I can only tell you the fact. I must go now. I have a long ride to a bad bed at the Court House, with tedious jury duty to do tomorrow. So, good night.”