The death of Mr. Jonathan Cilley, a representative in Congress from the State of Maine, killed in a duel with rifles, with Mr. Graves of Kentucky, led to the passage of an act with severe penalties against duelling, in the District of Columbia, or out of it upon agreement within the District. The penalties were—death to all the survivors, when any one was killed: a five years imprisonment in the penitentiary for giving or accepting a challenge. Like all acts passed under a sudden excitement, this act was defective, and more the result of good intentions than of knowledge of human nature. Passions of the mind, like diseases of the body, are liable to break out in a different form when suppressed in the one they had assumed. No physician suppresses an eruption without considering what is to become of the virus which is escaping, if stopped and confined to the body: no legislator should suppress an evil without considering whether a worse one is at the same time planted. I was a young member of the general assembly of Tennessee (1809), when a most worthy member (Mr. Robert C. Foster), took credit to himself for having put down billiard tables in Nashville. Another most worthy member (General Joseph Dixon) asked him how many card tables he had put up in their place? This was a side of the account to which the suppressor of billiard tables had not looked: and which opened up a view of serious consideration to every person intrusted with the responsible business of legislation—a business requiring so much knowledge of human nature, and so seldom invoking the little we possess. It has been on my mind ever since; and I have had constant occasions to witness its disregard—and seldom more lamentably than in the case of this anti-duelling act. It looked to one evil, and saw nothing else. It did not look to the assassinations, under the pretext of self-defence, which were to rise up in place of the regular duel. Certainly it is deplorable to see a young man, the hope of his father and mother—a ripe man, the head of a family—an eminent man, necessary to his country—struck down in the duel; and should be prevented if possible. Still this deplorable practice is not so bad as the bowie knife, and the revolver, and their pretext of self-defence—thirsting for blood. In the duel, there is at least consent on both sides, with a preliminary opportunity for settlement, with a chance for the law to arrest them, and room for the interposition of friends as the affair goes on. There is usually equality of terms; and it would not be called an affair of honor, if honor was not to prevail all round; and if the satisfying a point of honor, and not vengeance, was the end to be attained. Finally, in the regular duel, the principals are in the hands of the seconds (for no man can be made a second without his consent); and as both these are required by the duelling code (for the sake of fairness and humanity), to be free from ill will or grudge towards the adversary principal, they are expected to terminate the affair as soon as the point of honor is satisfied—and, the less the injury, so much the better. The only exception to these rules is, where the principals are in such relations to each other as to admit of no accommodation, and the injury such as to admit of no compromise. In the knife and revolver business, all this is different. There is no preliminary interval for settlement—no chance for officers of justice to intervene—no room for friends to interpose. Instead of equality of terms, every advantage is sought. Instead of consent, the victim is set upon at the most unguarded moment. Instead of satisfying a point of honor, it is vengeance to be glutted. Nor does the difference stop with death. In the duel, the unhurt principal scorns to continue the combat upon his disabled adversary: in the knife and revolver case, the hero of these weapons continues firing and stabbing while the prostrate body of the dying man gives a sign of life. In the duel the survivor never assails the character of the fallen: in the knife and revolver case, the first movement of the victor is to attack the character of his victim—to accuse him of an intent to murder; and to make out a case of self-defence, by making out a case of premeditated attack against 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.