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PRIVATE -DUELLING.

itatute.

BOOK II. the denomination of manslaughter, are not understood by the law of either country to apply to thofe "who meet avowed

ly with an intent to murder. This takes in the cafe of deliberate duelling, where both parties meet avowedly "with an intent to murder, thinking it their duty as gen"tlemen, and claiming it as their right to wanton with their "own lives, and those of their fellow-creatures; without ་ any warrant or authority from any power either divine or "human, but in direct contradiction to the laws both of "God and man; and therefore the law has justly fixed the "crime and punishment of murder on them and on their "feconds alfo a.”

FARTHER, the mere act of engaging in a duel, whether the Capital by parties receive any wound or not, is made capital by the statute 1600, c. 12, and the provoker is to be punished by a more ignominious death than the other at the pleasure of the fovereign. This statute faid nothing with respect to seconds; but the subsequent enactment of king William punishes the mere giving or accepting of a challenge, “ albeit "no fighting enfue," "by the pain of banishment and the "efcheat of moveables, without prejudice to the act already "made against the fighting of duels." So prefently stands the law. Both these statutes, on a late occafion, were declared unanimously by the court of jufticiary to be ftill in force.

THERE have not, however, been many prosecutions on this statute, which must be allowed to be a rigorous law;

a Blackstone, Com. b. iv, c. 14.
b This ac prohibits the fighting of
any fingle combat without the king's
licence. Strange, to imagine it pof-
fible that a ftatute could have any
durable or effectual operation by

which duelling is considered as criminal or not criminal, from the mere accident of its being permitted or not by the fovereign!

C

c 1696, c. 35.

d Macdonald, 6th August 1798.

§ 4.

PRIVATE

1DUAL LING.

and Mr. Hume obferves, he could not find in the records. more than two instances of a conviction upon it ".

THIS ftatute applies only to a serious propofal and adjustment of a combat. Ambiguous hints or inuendos on the one hand, or on the other mere verba jactantia, paffionate words of defiance, uttered face to face, and only tending to a challenge, are punished arbitrarily at common law, but not by the statutory pains. For example, in the course of a fcuffle, one of the perfons engaged in it, befides other abuse, calling to another of them to get a fword, and give him fatisfaction, was not found a relevant charge under this ftatate b.

PROSECUTIONS upon thefe ftatutes are not competent bc

early next morning, left a verbal
meffage for him with his fervant at
his houfe in Leith, bearing, that he
fhould wait for Eids upon the beach,
and have fatisfaction from him for
what had paffed the day before. In
this cafe it was objected that there
was no mention of mortal weapons,
nor any exprefs appeal to fight a duel
or fingle combat; but this plea was
over-ruled. They find the faid James
Maccall, pannel, his having, about
the time libelled, challenged the said
Baffet Eids to fight, relevant to infer
the pains libelled. 5th April 1714.

Vol. ii, p. 282. The one was the cafe of David Cairns, 1 and 2d May 1712. "It appears from the "proof that the defiance was given verbally, and by the one party in "the perfonal prefence of the other; "but in direct and plain terms, and "with mention of time and place, "though accompanied with foul and "opprobrious epithets. The judge "found the libel relevant to infer the ftatutory pains; and the pannel "being convicted had fentence of "efcheat of moveables and of ba"nishment from Scotland for the "fpace of feven years." And in the caufe of James Maccall, merchant in Leith, indicted at inftance of Baffet Eids, land-furveyor there; the court had fuftained a charge to this giving a challenge to the faid Alexeffect, that Maccal having thrown "ander Alves to fight, the faid lords out a perfonal defiance to Eids to "find the fame as libelled not relefight, and threatened to affront him "vant to infer the pains of the act wherever they should again meet, he," of parliament against duelling."

b January 5 and 9, 1719, William Alves against William Irving of Gribtoun. "And as to that article of the "libel, which concerns the pannel's

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PRIVATE
-DUEL-
LING.

fore the feffions of the peace, but only in the court of jufticiary. Like treason, and other heinous offences already mentioned, it is merely as a breach of the peace that duelling comes under the jurisdiction of justices of the peace, to whom it belongs to fecure the delinquents, and take precognitions and other fteps preparatory to a trial; and particularly on the first notice of an intended duel, to fecure all concerned till they give fecurity to keep the peace; a duty so much the more important, that preventive means feem to be the chief, if not the only, legal check by which this crime can be fuc cessfully restrained. For we cannot expect that the fevereft punishments will ever be " effectual to eradicate this un"happy custom, till a method be found out of compelling "the original aggreffor to make some other fatisfaction to "the affronted party, which the world shall esteem equally "reputable, as that which is now given at the hazard of the "life and fortune, as well of the person infulted as of him "who hath given the infult "."

a Hume, vol. iii, p. 93. "The lords of jufticiary are the only "judges in the following crime: the

"fighting a duel contrary to the fla"tute 1600, c. 12," &c.

b Black. Com. b. iv, c. 14, p. 198.

CHAP. II.

Of Preventive Justice, or the Means of Preserving the Public
Peace, and guarding Individuals against apprehended Wrong.

THE

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AND HIS

PREVENT

IVE JUS

I. THE body politic cannot be faid to have attained full maturity, or to enjoy perfect health and vigour, REASON while the community have no other fecurity against the dif- TORY OF turbance of the public peace, nor individuals against wrong and violence, excepting the infliction of punishments after TICE. the offence has been committed. Befides, vindictive justice, how neceffary foever, and really a kind of mercy to the community, is yet attended with difagreeable circumstances, which are happily avoided by the vigilant execution of preventive juftice. The latter, therefore, becomes an object of ferious attention in every well regulated code.

THE Romans had their cautio de non offendendo; by which any perfon who had reason to dread violence, applied to the prætor to make the fufpected perfon give fecurity for his peaceable demeanour ; their cautio de damno infecto, by which the proprietor of an infecure house was obliged to'

Interim adverfus minarum jaðationes id ufu receptum eft, ut inde metuens, implorato judicis auxilio, cautionem de non offendendo exigat a minarum auctore,

datis fidejussoribus vel pignoribus arbitri●
judicis, interponendam. (Voet, lib. iv,
tit. 2, § 13; Gayl. de pace publica,
lib. i, cap. 2, 3-)

31.

REASON

AND HIS

TORY OF

IT.

Saxons,

give security that it should not fall down upon his neighbour's property; and their cautio de dolo; or that fecurity which was exacted of the poffeffor of the thing in dispute, that it fhould not be deteriorated during the fubfiftence of the litigation. In England, under the Saxon conftitution, the public peace is faid to have been effectually preserved by means of king Alfred's celebrated inftitution of decennaries, or frankpledges; whereby the whole neighbourhood, or tithing of freemen, were mutually pledges for the good behaviour of Normans. each other. Under the Normans, the old manner of taking furety of the peace, which they termed treves (truce), was after this order: he, of whom it was demanded, in open court, taking him by the hand who demanded it, did folemnly fwear that neither he, nor any of his, fhould do him harm. But, in process of time," the confcience of an oath" being found less to restrain evil men than the lofs of goods, it became neceffary to take fure bond to the king for the fecurity of fuch as were in fear. In this country, in like manner, the antient practice was for men to take affurance from one another against any violence they apprehended. But an early statute of James I', ordained that " firm and ficker peace be keeped " and halden throw all the realm, and among all and findrie "lieges and fubjectes to our soveraigne lord the king; and "that no man take on hand in time to cum, to moove or "make weir against uther, under all paine that may follow be "course of common law." And by a subsequent enactment of the fame reign, it was ftatute and ordained, "that gif

Scotland.

2 Cautio de damno infecto præftatur cum tua domus ruinofa ruinam minatur domui mea. (Calvini Lex. jur. ad vocem.)

b Locum habebat cum petita judicio res et vereretque petitor, ne quid dolo malo poffeffor interea committeret; itaque apud judicem poftulabat ab eo, ut fibi repromit

teret, fe nibil, in ea re, dolo malo factu-
rum; boc modo fpondes ab ea re, qua de
agitur, dolum malum abesse, abfuturum
ee? (Calvini, ibid.)

c Blackstone, b. iv, c. 18.
d Lamb. b. ii, c. II.

e Stair, b. iv, tit. 48, § 2.

f

1424, C. 2.

1429, c. 129.

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