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The Casuistry Of Duelling
by [?]

[Footnote 2: No terms of art are used so arbitrarily, and with such perfect levity, as the terms hypothesis, theory, system. Most writers use one or other with the same indifference that they use in constructing the title of a novel, or, suppose, of a pamphlet, where the phrase thoughts, or strictures, or considerations, upon so and so, are used ad libitum. Meantime, the distinctions are essential. That is properly an hypothesis where the question is about a cause: certain phenomena are known and given: the object is to place below these phenomena a basis [[Greek: a hypothosis]] capable of supporting them, and accounting for them. Thus, if you were to assign a cause sufficient to account for the aurora borealis, that would be an hypothesis. But a theory, on the other hand, takes a multitude of facts all disjointed, or, at most, suspected, of some inter-dependency: these it takes and places under strict laws of relation to each other. But here there is no question of a cause. Finally, a system is the synthesis of a theory and an hypothesis: it states the relations as amongst an undigested mass, rudis indigestaque moles, of known phenomena; and it assigns a basis for the whole, as in an hypothesis. These distinctions would become vivid and convincing by the help of proper illustrations. ]

As an introduction, I will state my story–the case for the casuist; and then say one word on the reason of the case.

First, let me report the case of a friend–a distinguished lawyer at the English bar. I had the circumstances from himself, which lie in a very small compass; and, as my friend is known, to a proverb almost, for his literal accuracy in all statements of fact, there need be no fear of any mistake as to the main points of the case. He was one day engaged in pleading before the Commissioners of Bankruptcy; a court then, newly appointed, and differently constituted, I believe, in some respects, from its present form. That particular commissioner, as it happened, who presided at the moment when the case occurred, had been recently appointed, and did not know the faces of those who chiefly practised in the court. All things, indeed, concurred to favour his mistake: for the case itself came on in a shape or in a stage which was liable to misinterpretation, from the partial view which it allowed of the facts, under the hurry of the procedure; and my friend, also, unluckily, had neglected to assume his barrister’s costume, so that he passed, in the commissioner’s appreciation, as an attorney. ‘What if he had been an attorney?’ it may be said: ‘was he, therefore, less entitled to courtesy or justice?’ Certainly not; nor is it my business to apologise for the commissioner. But it may easily be imagined, and (making allowances for the confusion of hurry and imperfect knowledge of the case) it does offer something in palliation of the judge’s rashness, that, amongst a large heap of ‘Old Bailey’ attorneys, who notoriously attended this court for the express purpose of whitewashing their clients, and who were in bad odour as tricksters, he could hardly have been expected to make a special exception in favour of one particular man, who had not protected himself by the insignia of his order. His main error, however, lay in misapprehending the case: misapprehension lent strength to the assumption that my friend was an ‘Old Bailey’ (i. e., a sharking) attorney; whilst, on the other hand, that assumption lent strength to his misapprehension of the case. Angry interruptions began: these, being retorted or resented with just indignation, produced an irritation and ill temper, which, of themselves, were quite sufficient to raise a cloud of perplexity over any law process, and to obscure it for any understanding. The commissioner grew warmer and warmer; and, at length, he had the presumption to say:–‘Sir, you are a disgrace to your profession.’ When such sugar-plums, as Captain M’Turk the peacemaker observes, were flying between them, there could be no room for further parley. That same night the commissioner was waited on by a friend of the barrister’s, who cleared up his own misconceptions to the disconcerted judge; placed him, even to his own judgment, thoroughly in the wrong; and then most courteously troubled him for a reference to some gentleman, who would arrange the terms of a meeting for the next day. The commissioner was too just and grave a man to be satisfied with himself, on a cool review of his own conduct. Here was a quarrel ripened into a mortal feud, likely enough to terminate in wounds, or, possibly, in death to one of the parties, which, on his side, carried with it no palliations from any provocation received, or from wrong and insult, in any form, sustained: these, in an aggravated shape, could be pleaded by my friend, but with no opening for retaliatory pleas on the part of the magistrate. That name, again, of magistrate, increased his offence and pointed its moral: he, a conservator of the laws–he, a dispenser of equity, sitting even at the very moment on the judgment seat–he to have commenced a brawl, nay to have fastened a quarrel upon a man even then of some consideration and of high promise; a quarrel which finally tended to this result–shoot or be shot. That commissioner’s situation and state of mind, for the succeeding night, were certainly not enviable: like Southey’s erring painter, who had yielded to the temptation of the subtle fiend,