PART. II.
CHAP. IV.

Although convention be not neceffary to authorife the magistrate in the discharge of his duty for the repreffion of crimes; SECT. III. it is by convention that he alone is invested with the exclufive prerogative of interpofing at all times in defence of the innocent. In every well ordered community his powers are acknowledged or in ftituted exprefsly for this purpofe, and fellow citizens are understood to have agreed to refer their differences to a judge, to forgo the use of force in themfelves, and recur to the magiftrate for protection.

This fundamental convention of fellow citizens is that which effentially diftinguishes their cafe from that which was confidered in the last section. It is that which conftitutes the fpecific advantage of those who have the benefit of political establishments.

The citizen, even when injured, muft not do him felf right; but must have recourse to the protection of the magistrate for this purpose.

There are, however, exceptions to this falutary rule; either where, in the nature of things, the interpofition of the magiftrate cannot be obtained to prevent a wrong, or where the injury, once fuffered, cannot be repaired by the utmost exertions of his power. In every fuch cafe the fpirit of political inftitution, which is infpired by a concern for innocence, requires, that the innocent. fhould be allowed to defend himfelf. If this were refufed him, the fociety to which he has recourfe for protection would in fact become a fnare, in which he would be expofed to fuffer without any hopes of redress.

It is admitted accordingly, that any one affaulted in his ha

bitation

SECT. III.

PART II. bitation, or in his perfon has a right to repel the affault. The CHAP.IV. maxims of law in different countries may be unequally favourable to this act of defence, requiring unequal degrees of caution in proceeding to the last extremities. In fome it is required, that a perfon affaulted fhould endeavour to escape before he repels force with force: But as an attempt to escape may in fome circumstances augment the danger to which the person assaulted is exposed, it appears unjust and cruel to expofe him to this additional hazard; and the humanity which feemed to take part with the aggreffor, is indeed more properly due to the perfon attacked, who ought certainly to be indulged in defending himself at any neceffary hazard to the perfon who affails him.

A woman who is forcibly attacked in her chastity, or a man who is put to the trial of perfonal eftimation or honour, may receive an injury, which the utmoft power of the magistrate cannot afterwards repair. The exception is accordingly admitted, in favour of the private right of defence, on fuch occasions.

Among these modes of attack, there is a fingular species of injury, owing its effect to the caprice of manners in modern times; but of which the effect is extremely fevere and injurious, not susceptible of any legal measurement, nor repairable by all the power of the magiftrate.

In confequence of this fingular caprice, altogether unknown to the celebrated nations of antiquity, not only afperfions of character, but any fingle term of reproach, or gefture of infult, fo far impairs the estimation or credit of the person who fuffers them; that, if the breach be not repaired, in the way which caprice alfo directs, he becomes an outcast from the fociety, in which his con

CHAP. IV.

SECT. III.

dition depends on the esteem in which he is held. Applications PART II. to the courts of justice, for reparation, would only increase the dishonour. False afperfions may be removed by the clearest evidence of truth; but this would not remove the difhonour of having fuffered them to be made. An accufation may be known to be true or falfe; its effect, however, in this cafe, does not depend upon the degree in which it is believed, but upon the degree of tameness with which it is received. Even calumny hurts, not by the imputation of any criminal charge, but rather by the imputation of cowardice, implied in the manner of receiving it; and the defence which caprice has provided for this mode of attack, is a display of courage, not a refutation of any false accufation. The accufation may be true; but the courageous vindicates his honour: The accufation may be false; but the coward is overwhelmed with difgrace. Even the injured is denied the use of stratagem or surprise, in his own defence. He must meet his antagonist, however injurious, upon equal terms; and, if he would preferve his honour, muft pafs through the hazard of a single combat for that purpose. His character for integrity may be blafted or entire; but his eftimation, in point of honour, is independent of either condition.

In this example, the deviation from reafon is monstrous; but the dignity of justice is made to stoop to the caprice of fafhion; and, fo long as the private injury is fuffered to have its effect, and the petulance or folly of one perfon may drive another from his place in fociety; fo long as the magiftrate cannot preferve the citizen in his state; fo long the injured citizen must be allowed to defend himself, and to adopt the only means which are effectual for that purpose.

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PART II.
CHAP. IV
SECT. III.

of

To reform this abufe, has been justly confidered as an object great importance in the policy of modern nations: But attempts to this purpose have begun, perhaps, at the wrong end, by denunciations of feverity against those who, finding their honour invaded, take the ordinary way of preventing or repairing the wrong with which they are attacked. If men are by vulgar caprice made acceffible to an injury of the most serious nature, to an injury which the magiftrate cannot repair, it is by no means just to restrain them from the only means of defence that is left in their power. This being evident to the general fenfe of mankind, the only effect of feverities denounced by the law, in most countries, against the injured, as well as the aggreffor, has been to oblige courts of juftice to fall upon measures to evade the rigour of that very law they are required to apply.

If any thing could be done, to deprive unmerited affronts of their efficacy in the opinion of those who determine what fhall be a gentleman's reception in the world, the evil might probably foon give way, and the fenfibility of honour be changed into a contempt of offences which are now admitted to have the most fatal effects.

We fometimes congratulate ourselves on the influence of this practice, as it tends to polish our manners, and restrain the violent from offenfive brutalities, to which paffions may lead in the intercourfe of fociety. We do not confider, however, that we owe our fenfibility to fuch offences to the imputation of cowardice, which is made to accompany the fufferance of them; and that, without this imputation, unmerited infults would pafs in fociety, like the noise of a scold, in which no one is ever pleased

to

to think himself affronted, and which he therefore hears with PART II. contempt or indifference.

Crimes that proceed from the affectation of bravery, are not to be repreffed by the fear of punishment. The threats of law, in such cases, give the quarrelfome a double opportunity of diftinguishing himself. He braves his antagonist, and he braves the law. Even if he fhould be punished, his fuffering does not degrade him in the opinion of the people; for the people, like himself, admire bravery, even where it tends to disturb the public peace.

Abfurdity is more likely to cure itself, by being suffered to incur its extreme, than by being kept within certain bounds, which ferve to conceal the extent of its folly; and duelling, like other fashions, is likely to wear itself out when it becomes an affectation of the vulgar, and ceases to distinguish those who are termed men of fashion.

If there be in our times a progrefs towards this point of reformation, we have reason, in the mean time to regret the condition of thofe, perhaps the least deserving of any fuch fate, who may fuffer under the prevalence of a folly, of which they cannot always avoid the effects.

Were the law to distinguish the aggressor, in the first approach to a quarrel, just marks of difgrace affixed to the perfon in whom the offence originated, might perhaps infpire every party with caution to avoid a quarrel, and have better effects than any forcible reftraints applied to check the affectation of courage. It is not valour to brave difgrace; and, if the law fhould condemn an aggreffor to fome fpecies of infamy, the fafhion of seeking for ho

CHAP. IV.
SECT. III.