a concern for his own reputation: where this is not the cafe, the guilt of duelling is manifeft, and greater.

In this view it feems unneceffary to diftinguish between him who gives, and him who accepts, a challenge for they incur an equal hazard of destroying life; and both act upon the fame perfuafion, that what they do is neceffary in order to recover or preferve the good opinion of the world.

Public opinion is not eafily controlled by civil inftitutions for which reason I queftion whether any regulations can be contrived of fufficient force to fupprefs or change the rule of honour which ftigmatizes all fcruples about duelling with the reproach of cowardice.

The infufficiency of the redrefs which the law of. the land affords, for thofe injuries which chiefly affect a man in his fenfibility and reputation, tempts many to redrefs themfelves. Profecutions for fuch offences, by the trifling damages that are recovered, ferve only to make the fufferer more ridiculous. This ought to be remedied.

For the army, where the point of honour is cultivated with exquifte attention and refinement, I would eftablish a Court of Honour, with a power of awarding thofe fubmiffions and acknowledgments, which it is generally the purpofe of a challenge to obtain; and it might grow into fashion, with perfons of rank of all profeflions, to refer their quarrels to the fame tribural.

Duelling, as the la now ftands, caa feldom be overtaken by legal pument. The challenge, appointment, and other previous circumftances, which indicate the intention with which the combatants met, being fuppreffed, nothing appears to a court of jaf tice, but the actual rencounter. And if a perfon be flain when actually fighting with his adverfary, the law deems his death nothing more than manflaughter.

СНАР. X.

LITIGATION.

tr

I which
F it be possible

live peaceably with all men;" precept contains an indirect confeffion that this is not always poffible.

The inftances in the fifth chapter of St. Matthew are rather to be understood as proverbial methods of defcribing the general duties of forgiveness and benevolence, and the temper we ought to aim at acquiring, than as directions to be fpecifically obferved; or of themfelves of any great importance to be obferved. The firft of thefe is, "if thine enemy "fmite thee on thy right cheek, turn to him the "other alfo;" yet, when one of the officers struck Jefus with the palm of his hand, we find Jefus rebuking him for the outrage with becoming indignation: "If I have fpoken evil, bear witnefs of the "evil; but if well, why fmiteft thou me?" (John xviii. 22.) It may be obferved likewife, that the feveral examples are drawn from inftances of fmall and tolerable injuries. A rule which forbad all oppofition to injury; or defence againft it, could have no other effect, than to put the good. in fubjection to the bad, and deliver one half of mankind to the depredation of the other half: which muft be the cafe, fo long as fome confidered themfelves as bound by fuch a rule, whilft others defpifed it. St. Paul, though no one inculcated forgivenefs and forbearance, with a deeper

*Whofoever fhall fmite thee on thy right cheek, turn to "him the other alfo: and if any man fue thee at the law, and take away thy coat, let him have thy cloak alfo; and whofoever fall compel thee to go a mile, go with him twain.”

ferfe

fenfe of the value and obligation of these virtues, did not interpret either of them to require an unrefifting fubmiffion to every contumely, or a neglect of the means of fafety and felf-defence. He took refuge in the laws of his country, and in the privileges of a Roman citizen, from the confpiracy of the Jews, (Acts xxv. 11.) and from the clandeftine violence of the chief Captain. (Acts xxii. 25.). And yet this is the fame Apostle who reproved the litigioufnefs of his Corinthian converts with fo much feverity. "Now "therefore, there is utterly a fault among you, be"cause ye go to law one with another; why do you not rather take wrong? why do ye not rather fuf"fer yourselves to be defrauded?"

On the other hand, therefore, Christianity excludes all vindictive motives, and all frivolous causes of profecution; fo that where the injury is fmall, where no good purpose of public example is anfwered, where forbearance is not likely to invite a repetition of the injury, or where the expence of an action becomes a punishment too fevere for the offence; there the Chriftian is withholden by the authority of his religion from going to law.

On the other hand, a law-fuit is inconfiftent with no rule of the gospel, when it is inftituted.

1. For the establishing of fome important right. 2. For the procuring a compenfation for fome confiderable damage.

3. For the preventing of future injury.

But fince it is fuppofed to be undertaken fimply with a view to the ends of juftice and fafety, the profecutor of the action is bound to confine himself to the cheapest procefs that will accomplish thefe ends, as well as to confent to any peaceable expedient for the fame purpofe; as to a reference, in which the arbitrators can do, what the law cannot, divide the damage, when the fault is mutual; or to a compounding of the difpute, by accepting a compenfation in the grofs, without entering into articles and items, which it is often very difficult to adjust feparately.

0 2

As

As to the reft, the duty of the contending parties may be expreffed in the following directions:

Not to prolong a fuit by appeals against your own

conviction.

Not to undertake or defend a fuit against a poor adversary, or render it more dilatory or expenfive than neceffary, with the hope of intimidating or wearying him out by the expence.

Not to influence evidence by authority or expec

tation..

Nor to ftifle any in your poffeffion, although it make against you.

In cri

Hitherto we have treated of civil actions. minal profecutions the private injury fhould be forgotten, and the profecutor proceed with the fame temper, and upon the fame motives, as the magiftrate; the one being a neceffary minifter of juftice as well as the other; and both bound to direct their conduct by a difpaffionate care of the public welfare.

In whatever degree the punishment of an offender is conducive, or his efcape dangerous, to the intereft of the community, in the fame degree is the party against whom the crime was committed bound to profecute, because fuch profecutions must in their nature originate from the fufferer.

Therefore, great public crimes, as robberies, forgeries, and the like, ought not to be fpared, from an apprehenfion of trouble or expence in carrying on the profecution, or from falfe fhame or misplaced compaffion.

There are many offences, fuch as nuifances, neglect of public roads, forestalling, engroffing, fmuggling, fabbath breaking, profanenefs, drunkenness, prostitution, the keeping of lewd or disorderly houses, the writing, publishing, or expofing to fale lafcivious books or pictures, with fome others, the profecution of which, being of equal concern to the whole neighbourhood, cannot be charged as a peculiar obligation upon any.

Nevertheless, there is great merit in the perfon who undertakes fuch profecutions upon proper motives; which amounts to the fame thing.

The character of an informer is in this country undefervedly odious. But where any public advantage is likely to be attained by informations, or other activity in promoting the execution of the laws, a good man will defpife a prejudice founded in no just reafon, or will acquit himself of the imputation of interefted defigns by giving away his fhare of the penalty.

On the other hand, profecutions for the fake of the reward, or for the gratification of private enmity, where the offence produces no public mifchief, or where it arifes from ignorance or inadvertency, are reprobated under the general defcription of applying a rule of law to a purpole for which it was not intended. Under which defcription may be ranked an officious revival of the laws against popifh priests, and diffenting teachers.

CHA P.