Dealings with the Dead, Volume 2 (of 2)Sargent, Lucius M. (Lucius Manlius)
History
Dealings with the Dead, Volume 2 (of 2)
Sargent, Lucius M. (Lucius Manlius)
Death; Funeral rites and ceremonies; Funeral rites and ceremonies -- United States
Dr. Franklin, in his letter to Mr. Percival, referred to, in my last
number, observes, that, "formerly, when duels were used, to determine
lawsuits, from an opinion, that Providence would, in every instance, favor
truth and right with victory, they were excusable." Dr. Johnson did not
think this species of duel so absurd, as it is commonly supposed to be:
"it was only allowed," said he, "when the question was in equilibrio, and
they had a notion that Providence would interfere in favor of him, who was
in the right." Bos., vol. iv. page 14. The lawfulness of a thing may
excuse it: but there are some laws, so very absurd, that one stares at
them, in the statute book, as he looks at flies in amber, and marvels
"_how the devil they got there_." There was, I am gravely assured, in the
city of New Orleans, not very long ago, a practitioner of the healing art,
who was called _the Tetotum doctor_--he felt no pulse--he examined no
tongue--he asked no questions for conscience' sake, nor for any other--his
tetotum was marked with various letters, on its sides--he sat down, in
front of the patient, and spun his tetotum--if B. came uppermost, he bled
immediately--if P., he gave a purge--if E., an emetic--if C., a clyster,
and so on. If there be less wisdom, in this new mode of practice, than in
the old wager of Battel, I perceive it not.
Both Drs. Franklin and Johnson refer to it, as an _ancient_ practice. It
was supposed, doubtless, to have become obsolete, and a dead letter,
extinguished by the mere progress of civilization. Much surprise,
therefore, was excited, when, at a period, as late as 1818, an attempt was
made to revive it, in the case of Ashford _vs._ Thornton, tried before the
King's Bench, in April of that year. This was a case of appeal of murder,
under the law of England. Thornton had violated, and murdered the sister
of Ashford; and, as a last resort, claimed his right to _wager of battel_.
The court, after full consideration, felt themselves obliged to admit the
claim, under the unrepealed statute of 9, William II., passed A. D. 1096.
Ashford, the appellant, and brother of the unfortunate victim, declined to
accept the challenge, and the murderer was accordingly discharged. This
occurred, in the 58th year of George III., and a statute was passed, in
1819, putting an end to this terrible absurdity. Had the appellant, the
brother, accepted this legalized challenge, what a barbarous exhibition
would have been presented to the world, at this late day, through the
inadvertence of Parliament, in omitting to repeal this preposterous law!
Public-domain text, read in full here on John Shaqi.
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