the other. And in such false accusation, the French proverb is usually verified – the dead and the absent are always in the wrong.
The anti-duelling act did not suppress the passions in which duels originate: it only suppressed one mode, and that the least revolting, in which these passions could manifest themselves. It did not suppress the homicidal intent – but gave it a new form: and now many members of Congress go into their seats with deadly weapons under their garments – ready to insult with foul language, and prepared to kill if the language is resented. The act should have pursued the homicidal intent into whatever form it might assume; and, therefore, should have been made to include all unjustifiable homicides.
The law was also mistaken in the nature of its penalties: they are not of a kind to be enforced, if incurred. It is in vain to attempt to punish more ignominiously, and more severely, a duel than an assassination. The offences, though both great, are of very different degrees; and human nature will recognize the difference though the law may not: and the result will be seen in the conduct of juries, and in the temper of the pardoning power. A species of penalty unknown to the common law, and rejected by it, and only held good when a man was the vassal of his lord – the dogma that the private injury to the family is merged in the public wrong – this species of penalty (amends to the family) is called for by the progress of homicides in our country; and not as a substitute for the death penalty, but cumulative. Under this dogma, a small injury to a man's person brings him a moneyed indemnity; in the greatest of all injuries, that of depriving a family of its support and protector, no compensation is allowed. This is preposterous, and leads to deadly consequences. It is cheaper now to kill a man, than to hurt him; and, accordingly, the preparation is generally to kill, and not to hurt. The frequency, the wantonness, the barbarity, the cold-blooded cruelty, and the demoniac levity with which homicides are committed with us, have become the opprobrium of our country. An incredible number of persons, and in all parts of the country, seem to have taken the code of Draco for their law, and their own will for its execution – kill for every offence. The death penalty, prescribed by divine wisdom, is hardly a scare-crow. Some States have abolished it by statute – some communities, virtually, by a mawkish sentimentality: and every where, the jury being the judge of the law as well as of the fact, find themselves pretty much in a condition to do as they please. And unanimity among twelve being required, as in the English law, instead of a concurrence of three-fifths in fifteen, as in the Scottish law, it is in the power of one or two men to prevent a conviction, even in the most flagrant cases. In this deluge of bloodshed some new remedy is called for in addition to the death penalty; and it may be best found in the principle of compensation to the family of the slain, recoverable in every case where the homicide was not justifiable under the written laws of the land. In this wide-spread custom of carrying deadly weapons, often leading to homicides where there was no previous intent, some check should be put on a practice so indicative of a bad heart – a heart void of social duty, and fatally bent on mischief; and this check may be found in making the fact of having such arms on the person an offence in itself, prima facie evidence of malice, and to be punished cumulatively by the judge; and that without regard to the fact whether used or not in the affray.
The anti-duelling act of 1839 was, therefore, defective in not pursuing the homicidal offence into all the new forms it might assume; in not giving damages to a bereaved family – and not punishing the carrying of the weapon, whether used or not – only accommodating the degree of punishment to the more or less use that had been made of it. In the Halls of Congress it should be an offence, in itself, whether drawn or not, subjecting the offender to all the penalties for a high misdemeanor – removal from office – disqualification to hold any office of trust or profit under the United States – and indictment at law besides.
CHAPTER XXXVI.
SLAVERY AGITATION IN THE HOUSE OF REPRESENTATIVES, AND RETIRING OF SOUTHERN MEMBERS FROM THE HALL
The most angry and portentous debate which had yet taken place in Congress, occurred at this time in the House of Representatives. It was brought on by Mr. William Slade, of Vermont, who, besides presenting petitions of the usual abolition character, and moving to refer them to a committee, moved their reference to a select committee, with instructions to report a bill in conformity to their prayer. This motion, inflammatory and irritating in itself, and without practical legislative object, as the great majority of the House was known to be opposed to it, was rendered still more exasperating by the manner of supporting it. The mover entered into a general disquisition on the subject of slavery, all denunciatory, and was proceeding to speak upon it in the State of Virginia, and other States, in the same spirit, when Mr. Legare, of South Carolina, interposed, and —
"Hoped the gentleman from Vermont would allow him to make a few remarks before he proceeded further. He sincerely hoped that gentleman would consider well what he was about before he ventured on such ground, and that he would take time to consider what might be its probable consequences. He solemnly entreated him to reflect on the possible results of such a course, which involved the interests of a nation and a continent. He would warn him, not in the language of defiance, which all brave and wise men despised, but he would warn him in the language of a solemn sense of duty, that if there was 'a spirit aroused in the North in relation to this subject,' that spirit would encounter another spirit in the South full as stubborn. He would tell them that, when this question was forced upon the people of the South, they would be ready to take up the gauntlet. He concluded by urging on the gentleman from Vermont to ponder well on his course before he ventured to proceed."
Mr. Slade continued his remarks when Mr. Dawson of Georgia, asked him for the floor, that he might move an adjournment – evidently to carry off the storm which he saw rising. Mr. Slade refused to yield it; so the motion to adjourn could not be made. Mr. Slade continued, and was proceeding to answer his own inquiry put to himself – what was Slavery? when Mr. Dawson again asked for the floor, to make has motion of adjournment. Mr. Slade refused it: a visible commotion began to pervade the House – members rising, clustering together, and talking with animation. Mr. Slade continued, and was about reading a judicial opinion in one of the Southern States which defined a slave to be a chattel – when Mr. Wise called him to order for speaking beside the question – the question being upon the abolition of slavery in the District of Columbia, and Mr. Slade's remarks going to its legal character, as property in a State. The Speaker, Mr. John White, of Kentucky, sustained the call, saying it was not in order to discuss the subject of slavery in any of the States. Mr. Slade denied that he was doing so, and said he was merely quoting a Southern judicial decision as he might quote a legal opinion delivered in Great Britain. Mr. Robertson, of Virginia, moved that the House adjourn. The Speaker pronounced the motion (and correctly), out of order, as the member from Vermont was in possession of the floor and addressing the House. He would, however, suggest to the member from Vermont, who could not but observe the state of the House, to confine himself strictly to the subject of his motion. Mr. Slade went on at great length, when Mr. Petrikin, of Pennsylvania, called him to order; but the Chair did not sustain the call. Mr. Slade went on, quoting from the Declaration of Independence, and the constitutions of the several States, and had got to that of Virginia, when Mr. Wise called him to order for reading papers without the leave of the House. The Speaker decided that no paper, objected to, could be read without the leave of the House. Mr. Wise then said:
"That the gentleman had wantonly discussed the abstract question of slavery, going back to the very first day of the creation, instead of slavery as it existed in the District, and the powers and duties of Congress in relation to it. He was now examining the State constitutions to show that as it existed in the States it was against them, and against the laws of God and man. This was out of order."
Mr. Slade explained, and argued in vindication of his course, and was about to read a memorial of Dr. Franklin, and an opinion of Mr. Madison on the subject of slavery – when the reading was objected to by Mr. Griffin, of South Carolina; and the Speaker decided they could not be read without the permission of the House. Mr. Slade, without asking the permission of the House, which he knew would not be granted, assumed to understand the prohibition as extending only to himself
