While the public mind is in such a chaos, it is almost hopeless to
expect any speedy amelioration, either in the law, or in popular
opinion. Yet the period of improvement may not be so infinitely distant
as at first sight we should be led to suppose.
The great principle of legislation, that the severity of punishment
ought not to be so great as to shock the general feeling, is gradually
toiling its way from the works of _theorists_ (as they are called), into
the heads of _practical men_, and in the course of a few ages these
latter gentlemen may also be taught, that to visit with the same penalty
the aggressor and his antagonist, whom he has forced into a duel, is not
quite consistent with sound and enlightened maxims of justice; and, what
will probably have more weight, they may discover that it is a species
of legislation which cannot be carried into effect. In equally
reasonable time it may be found, that what cannot be entirely abolished
may be regulated. Suppose that after a duel was fought, the law
condescended to inquire into the merits of the dispute, and punish him
who had provoked the outrage; is it not probable that fear of legal
punishment, superadded to the danger of being shot, would prevent some
of those aggressions from which duels arise? Even the master of that
most valuable accomplishment, the power of snuffing a candle with a
pistol-bullet, might shrink from such an investigation as this, which
would naturally be followed up with a severe penalty. Public feeling
would offer no obstacle. The wretch who wantonly, or perhaps
maliciously, puts a fellow-creature under the necessity of either
suffering mental pain and degradation, or exposing his life to extreme
danger, deserves no sympathy, and would receive none.
Nor ought the second, who assisted such a man, wholly to escape. To a
certain degree he would be an object of public displeasure, and might
therefore be visited with a punishment bearing some proportion to that
of his principal. Where blame fairly attaches to both parties, then, let
both be punished; but let the penalty have relation to the common
feelings of mankind. It is impossible to treat the survivor in such a
duel as a murderer, but he ought not therefore entirely to escape. The
law as it now stands resembles Thor in _Jutenheim_; his hammer was able
to beat down rocks, but he struck at shadows, and his real enemies
laughed at his blows.