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Reports of cases decided by the Supreme Court of Errors and Appeals of the state of Tennessee. Nashville, January Term, 1829.

SMITH US. STATE OF TENNESSEE.

This was an appeal from a decision of Maury circuit court, by which the appellant was stricken from the roll as an attorney of that court, for having accepted a challenge, and fought a duel.

Opinion delivered by Judge Catron.

That an attorney may be stricken from the roll for good cause, none can doubt. Yerger's Rep. No. 2. 270, 71, Stat. 4 H. 4, C. 18; St. Westminster 1. C. 39; 2 Just. 213, 14, 15.

Much inquiry has been made into the powers of the courts to remove attorneys; if the old statute of H. 4. had itself been looked to, that which has been searched for, and found obscurely hinted at, in so many authors, could have been found in a short paragraph; the statute first provides that all who are of good fame shall be put into the roll, after examination of the justices, at their discretion, and after being sworn well and truly to serve in their offices: "And if any such attorney be hereafter notoriously found in any default, of record, or otherwise, he shall forswear the court, and never after be received to make any suit, in any court of the king. They that be good and virtuous, and of good fame, shall be received and sworn," at the discretion of the justices; and if they are notoriously in default, at discretion may be removed, upon evidence either of record, or not of record.

This statute has received the sanction of four centuries, without alteration, and almost without addition, governing a profession more numerous and powerful (when applied to counsel also, as in most of the U. States) than any known to the history of the world, without complaint of its provisions, or abuse of power on part of the courts,

in its exercise, so far as the judicial history of England or America furnishes instances. It is remarkable, that there is not a provision in any act of assembly of Tennessee upon the subject, but is in strict affirmance of it; nor does a single provision go beyond it; our statutes require that the attorney shall be of good moral character, learned, and of capable mind. A loss of either of these, is good ground for withdrawing the privilege conferred by the license.

Suppose an attorney were to become insane, by the hand of providence, or intemperance, he would be disqualified, and the license should be withdrawn; were he to become besotted, and notoriously profligate, he would be neither virtuous nor of good fame, and should be stricken from the roll. A hundred instances might be cited, where the ttorneys, once qualified, might become disqualified, when the privilege should be taken from them. Who must perform this duty? The power which has conferred the appointment; that is, every court where the attorney is permitted to practise, for they equally extend the privilege. The principle is almost universal in all governments, that the power which confers an office, has also the right to remove the officer for good cause-the county court, constables, &c.; the senate, officers elected by the legislature and people; in all these cases, the tribunal removing, is, of necessity, the judge of the law and fact; to ascertain which, every species of evidence can be heard, legal in its character, according to common law rules. and consistent with our constitution and laws. This court, the circuit court, or the county court, on a motion to strike an attorney from the rolls, has

the same right (growing out of a similar necessity) to examine evidence of the facts, that the senate of the state has, when trying an impeachment. The authorities to sustain these positions are all cited in the cause of the State against Fields, and will not again be referred to.

We will now examine the practice pursued upon these principles in England. There, grounds are laid for a rule upon the attorney to show cause why he shall not be stricken from the roll: if sufficient, the rule is entered, the attorney notified to ppear and answer, as in case of a contempt; if he sees proper to answer, it is received, evidence is examined to support the motion, and to resist it, upon which the court decides.

The practice under the act of 1815, ch. 97, must be the same, with this difference, that a charge may be exhibited to a judge in or out of court, alleging the default or misdemeanour complained of; if the judge deems the charge sufficient to warrant the removal, he shall cause the attorney to be furnished with a copy, and cite him to appear in open court; when the proceedings are conducted in all respects as under the British statute. The attorney may answer the charges in writing if he chooses, when evidence will be heard to support or resist them; or if he does not answer, still the charges must be proved, or confessed by the defendant, before he can be stricken out of the roll. Suppose the charges insufficient, he may move to quash them; where the matter will end, if the motion prevails. Pleas and demurrers never entered the mind of the legislature, when prescribing the mode of proceeding by the act of 1815; they only meant that the plain man, ignorant of law, should have a plain remedy against a man of a profession possessing many advantages in skill over him-that his statement should be taken as prima facie true, the same as the affidavits upon which the rule was grounded by the previous practice, requiring legal skill, not always, and in all situations to be so

easily obtained against another lawyer. The practice is a correct one, from which innocence has nothing to fear. The circuit judge was, therefore, mistaken in supposing the demurrer could be filed, or that it operated any thing; he should have stricken it out, and heard the proof. The defendant had clearly the right to quash the charges, if they are insufficient to warrant his removal; having made this motion, which was refused by the court below, we must give the judgment that court should have given, upon the validity of the charges.

The first charge is, that the defendant accepted a challenge to fight a duel, from one Robert H. Brank, in the county of Maury, Tennessee.

2d. That he did fight the duel with said Brank, in the commonwealth of Kentucky, where he did kill and murder said Brank, and that he stands indicted for said murder, in the county of Simpson, and commonwealth of Kentucky.

The act of 1809, ch. 5, sec. 1, provides "That any person or persons, citizens of this state, who shall be guilty of giving or receiving a challenge for the purpose of fighting a duel, within or without this state, or shall be the friend of either party, in bearing a challenge for that purpose, every such person or persons shall, for ever after, be incapable of holding any office or appointment, whether of honour or profit, and shall, moreover, be incapable of giving testimony in any court of record, or serving as a juror."

The act of 1801, ch. 32, sec. 3, declares the killing in a duel, murder, and that the survivor shall suffer death. This provision was wholly unnecessary, as it always has been murder, punishable with death, without the benefit of clergy, to kill in a duel; 1 Hawk. Plea. ch. 1. sec. 21, page 122. The second of the slayer being an accessary before the fact, and a principal present when the murder was committed, aiding and abetting, is equally guilty of murder, and subject to suffer death: 1 Hawk. ch. 1. sec. 31, page

124. It is the law of every Christian country in the known world. Notwithstanding the laws, sanctioned by the concurring opinion of mankind for centuries, it is gravely insisted (accompanied by predictions of terrible consequences) that it is not our duty to have them executed, because, it is said, good character is not forfeited in this instance, and therefore, disqualification should not follow; to prove which, the acts of many English names in the last and present centuries are referred to, as also many in the United States, who have sanctioned the practice by being parties to duels, and who continued thereafter, equally distinguished members of society. Let us examine the matter.

It is true, as a part of the history of our species, that many men of strong minds, have equally strong passions, which are ill-controlled, and subject such men to grosser errors than others with fewer mental advantages; these are the men of worth that fight duels, having no guide but lind and reckless passion when aroused, regardless of their own lives or those of others-hence their conduct furnishes the worst possible evidence upon which to ground a rule for the government of society. This class of duellists are not less wicked than others we will name, but their standing renders it more difficult to punish them.

Another set of men fight duels, (or rather make a show towards it,) to gratify their vanity, by drawing upon themselves a little temporary notice, which their personal worth or good conduct cannot procure These are always worthless coxcombs, equally destitute of bravery, virtue, or sense, whose feeble nerves would be shattered and prostrated at the sight of an enemy in the field of battle, who are ridiculous in every situation where courage or conduct is required. This class of duellists do little harm other than to disturb the community; they quarrel to make peace; or, if officious intermeddlers force them into a fight, are too much alarmed to hit, or perhaps see their antagonist. The affair

is laughed at as a farce, and the parties turned over to the constable.

Many of this description challenge, because they know the party challenged will not fight; having a due regard for religion, the laws of his country, and his family. The infamy or worthlessness of the challenger generally is such as to disgrace any decent man to notice him. These pretenders to bravery and gentlemanship, are always absolute cowards; for no man will challenge another, knowing he either will not, or dare not fight, unless he be cowardly. The officers of our army at present dare not fight; therefore it is a disgrace for one officer to challenge another. The most distinguished man in the service lately refused to accept or reply to a challenge, from an officer of equal rank, because he feared his God, and the laws of his country; he has met his due reward, by having accorded to him the unlimited approbation of his countrymen.

Let it be once understood that the Bar of Tennesse dare not fight, and it will be deemed cowardly to challenge a member of it; and this court solemnly warns every lawyer, that if he violates the laws made to suppress duelling, we will strike him from the rolls of the court, upon the fact being made known to us. The truth is, such men are too often insolent and impudent bullies, who tyrannize over, and impose upon all orderly men about them; who literally dragoon society, by fear of personal violence, into silence and seeming acquiescence, with respect to their conduct. That such a counsellor is a disgrace, and serious incumbrance to any court where he is permitted to practice, all will admit; those who engage in duels, the statutes deem, and we will treat, as of this description.

Another class accept challenges, and even challenge and fight, for the very reason that they want true courage; they have not moral and independent firmness enough to disregard the giddy assertions of that idle part of the

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mmunity, who say a man is a coward, because he refuses to fight; not

that such people have either belief or disbelief of what they say; they are too light minded to form any settled conclusion, and repe it idly as the parrot, what some revengeful neighbour has before said, who gratifies his malice by mixing gall with the cup of another. The pride, weak nerves, and morbid sensibility of such a man force him to the pistol's mouth of a ruthless and unprincipled antagonist, as feeble, trembling, and unresisting as the lamb to the shambles, and with almost an equal certainty of destruction, because he still more fears the detraction of the malicious and the gossip of the giddy. The same principle of human action often induces the delicate and sensitive female, with fear and trembling, to assent to see herself made a widow, and her helpless infants orphans, by the butchery of her husband in a duel. Any man who takes the life of another under such circumstances, (forced upon him by wicked design,) can be truly said to "have a heart regardless of all social order, and fatally bent upon mischief;" and he should suffer death for the crime, because he has bullied his antagonist into resistance, and then murdered him.

Nervous and timid men of the foregoing description, if they come off unslain, fail to obtain their object; society will not believe them brave. There is an instinct in our nature that mocks every art upon this subject; it tells us whether a man is, or is not, fearless; upon all, from the tottering infant to the savage bully, the same impression forces itself. The fearless man walks through life without assault, and without reproach on his bravery, from those worthy his notice, although he may continually have refused to fight duels. No man ever persuaded the world he was fearless, unless the fact was so. Should it be a reproach, that a weak and nervous man has not the courage of a lion? It is a reflection upon God and nature to require it.

It is said single combat is often the only redress that can be had for a personal injury; we apprehend those who

hazard the assertion, not very deeply stricken in the moral code, and much better acquainted with their own passions than the human heart; they tell us wicked vengeance, and murderous crime, is redress! This is not the precept our Saviour taught, our religion inculcates, and our laws enjoin; malice, vengeance, and crime, have no place but in the catalogue of iniquity. If one respectable man says a harsh and injurious thing of another, it is almost uniformly in some moment of high excitement, in the bar or elsewhere; the result of instant and angry passion, of which the offending party in a few hours, when he becomes cool, is heartily ashamed; most willingly would he make reparation if he had an opportunity; but he cannot, nor will not, be bullied into it, by threats of punishment; nothing more or less than this is a challenge. Let the offended party wait until the excitement has passed off, and he will generally find half the sin resting upon himself: were the writer to judge from his own experience, this would be a small allowance. He should then go to the offender in a firm, serious, and just temper, and inquire of him the reason for the injury; he will then hear his own fault for half the excuse, the angry and excited passions of his neighbour for the other half; here the matter will end, almost as assuredly as that God is just. I ask every grayheaded man in American society, did this course ever fail you, with a man worthy of your notice?

But this requires more moral courage, and fearless firmness, than most men are masters of; they prop their doubtful courage and trembling nerves, by applying to some supposed friend, who often turns out to be one of those malicious whisperers, and agitators of duels, whose revengeful heart glories in seeing his species murder each other in cold blood; generally, in addition, having some secret revenge to gratify against the offender, for which reason he is but too often applied to. Here the cunning machinations of malice have fair room for action; a duel is of

course advised, as the only redress honour can allow of; every means is used to bring it on; every sinister trick and argument is employed to keep the principal firm to the desperate purpose, who surrenders his judgment and his life into the hands of wickedness, to be destroyed. Such agitators have cold and cruel hearts, dead to every moral sense or feeling of humanity; generally afraid to encounter danger themselves, in the field of battle, or even in a ridiculous duel, wherein certainly ten cowards engage to one brave man. Who ever heard of a brave and fearless man exciting and urging on another to a duel, to the destruction of himself, his poor unoffending wife, and helpless infants, without using all means possible to adjust it? No one. It is the working of cruelty, insidious cunning, and malice, under the seemly garb of friendship, that does this. Not such as these, but men of great moral worth, fearlessness and independence, should be applied to for advice and aid, who will generally settle the matter with a few words of advice to the parties perhaps laugh at the trifle that set the passions in commotion; have some silly mistake explained, and end the matter. The brave man is always generous, feeling, and just; and others submit to his judgment with pleasure. Such are duelling and its consequences; and the characters of the men who engage in the practice; which, if it does not involve wickedness and criminality, crime deserves no name, and morality no place in the human heart-they do not exist, if this be not a crime.

To restrain the blind and criminal passions, that drive to ruin the fearless and valuable man; to restrain the wicked vanity of the noisy coxcomb; and to protect from his misguided fears of giddy and idle ridicule, the physically weak and nervous man; have mankind generally, and Tennessee in

particular, legislated to punish duelling.

Taking the petition for true, and how does the case of the defendant stand? By the laws of God, the laws of England, from the days of the Edwards; by the laws of Kentucky and Tennessee, and every civilized land, he is declared to have been guilty of wicked, and malicious murder, and a felon fled from justice. Is it possible. that any well balanced mind, can, for a moment, believe that a man, whom the law thus condemns, is a fit person to be an aider and adviser in the sanctuaries of justice?

We are told this is only a kind of honourable homicide! The law knows it as a wicked and wilful murder, and it is our duty to treat it as such-we are placed here, firmly and fearlessly to execute the laws of the land, not visionary codes of honour, framed to subserve the purposes of destruction.

The cause will be remanded to the Maury circuit court, for the proofs to be heard by that court; what they will be, we know not, having only examined the motion to quash: the competency of the proofs we give no opinion upon, nor their effect, further than the petition sets them forth to wit, a true bill for murder, found in Simpson county, Kentucky; which, if proved by the record to be the fact, we think amply sufficient to authorize the circuit court to strike the defendant from the roll of attorneys, had no statute to suppress duelling ever passed in Tennessee; because the defendant stands charged with capital felony, and has, prima facie, forfeited his life. Were we to permit him to practise law, Tennessee would be offered as a sanctuary to all flying from justice elsewhere; those guilty of the highest crimes, would be our advisers and aiders to execute those laws, against which they had so grossly offended in a sister state. This would be a disgrace to justice, and cannot be permitted.

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