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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 vs. STATE OF TENNESSEE.

This was an appeal from a decision in its exercise, so far as the judicial of Maury circuit court, by which the history of England or America furappellant was stricken from the roll as nishes instances. It is remarkable, an attorney of that court, for having that there is not a provision in any act accepted a challenge, and fought a of assembly of Tennessee upon the duel.

subject, but is in strict affirmance of it; Opinion delivered by Judge Catron.

nor does a single provision go beyond

it; our statutes require that the attorThat an attorney may be stricken ney shall be of good moral character, from the roll for good cause, none can learned, and of capable mind. A loss doubt. Yerger's Rep. No. 2. 270, 71, of either of these, is good ground for Stat. 4 H. 4, C. 18; St. Westminster withdrawing the privilege conferred 1. C. 39; 2 Just. 213, 14, 15.

by the license. Much inquiry has been made into Suppose an attorney were to be. the powers of the courts to remove at- come insane, by the hand of provitorneys ; if the old statute of H. 4. dence, or intemperance, he would be had itself been looked to, that which disqualified, and the license should be has been searched for, and found ob- withdrawn ; were he to become besotscurely hinted at, in so many authors, ted, and notoriously profligate, he could have been found in a short para- would be neither virtuous nor

of good graph; the statute first provides that fame, and should be stricken from the all who are of good fame shall be put roll. A hundred instances might be into the roll, after examination of the cited, where the ttorneys, once qualijustices, at their discretion, and after fied, might become disqualified, when being sworn well and truly to serve in the privilege should be taken from their offices : “And if any such attor. them. Who must perform this duty ? ney be hereafter notoriously found in The power which has conferred the apany default, of record, or otherwise, pointment ; that is, every court where he shall forswear the court, and never the attorney is permitted to practise, for after be received to make any suit, in they equally extend the privilege. The any court of the king. They that be principle is almost universal in all gogood and virtuous, and of good fame, vernments, that the power which conshall be received and sworn,” at the fers an office, has also the right to rediscretion of the justices ; and if they move the officer for good cause-the are notoriously in default, at discretion county court, constables, &c.; the may be removed, upon evidence either senate, officers elected by the legislaof record, or not of record.

ture and people ; in all these cases, This statute has received the sanc- . the tribunal removing, is, of necessity, tion of four centuries, without altera- the judge of the law and fact; to astion, and almost without addition, go- certain which, every species of eviverning a profession more numerous dence can be heard, legal in its characand powerful (when applied to counsel ter, according to common law rules. also, as in most of the U. States) than and consistent with our constitution any known to the history of the world, and laws. This court, the circuit without complaint of its provisions, or court, or the county court, on a motion abuse of power on part of the courts, to strike an attorney from the rolls, has

the same right (growing out of a simi. easily obtained against another lawlar necessity) to examine evidence of yer. The practice is a correct one, the facts, that the senate of the state from which innocence has nothing to has, when trying an impeachment. fear. The circuit judge was, there. The authorities to sustain these posi- fore, mistaken in supposing the detions are all cited in the cause of the murrer could be filed, or that it opeState against Fields, and will not again rated any thing; he should have be referred to.

stricken it out, and heard the proof. We will now examine the practice The defendant had clearly the right to pursued upon these principles in Eng- quash the charges, if they are insuffiland. There, grounds are laid for a cient to warrant his removal ; having rule upon the attorney to show cause made this motion, which was refused why he shall not be stricken from the by the court below, we must give the roll: if sufficient, the rule is entered, judgment that court should have given, the attorney notified to ppear and upon the validity of the charges. answer, as in case of a contempt ; if The first charge is, that the defendhe sees proper to answer, it is receiv. ant accepted a challenge to fight a ed, evidence is examined to support duel, from one Robert H. Brank, in the motion, and to resist it, upon which the county of Maury, Tennessee. the court decides.

2d. That he did fight the duel with The practice under the act of 1815, said Brank, in the commonwealth of ch. 97, must be the same, with this Kentucky, where he did kill and mura difference, that a charge may be ex der said Brank, and that he stands inhibited to a judge in or out of court, dicted for said murder, in the county alleging the default or misdemeanour of Simpson, and commonwealth of complained of; if the judge deems the

Kentucky. charge sufficient to warrant the remo The act of 1809, ch. 5, sec. 1, proval, he shall cause the attorney to be vides “ That any person or persons, furnished with a copy, and cite him to citizens of this state, who shall be appear in open court; when the pro guilty of giving or receiving a chalceedings are conducted in all respects lenge for the purpose of fighting a as under the British statute. The at duel, within or without this state, or torney may answer the charges in shall be the friend of either party, in writing if he chooses, when evidence bearing a challenge for that purpose, will be heard to support or resist them; every such person or persons shall, or if he does not answer, still the for ever after, be incapable of holding charges must be proved, or confessed any office or appointment, whether of by the defendant, before he can be honour or profit, and shall, moreover, stricken out of the roll. Suppose the be incapable of giving testimony in charges insufficient, he may move to any court of record, or serving as a quash them ; where the matter will juror.” end, if the motion prevails. Pleas The act of 1801, ch. 32, sec. 3, deand demurrers never entered the mind clares the killing in a duel, murder, of the legislature, when prescribing and that the survivor shall suffer death. the mode of proceeding by the act of This provision was wholly unneces1815; they only meant that the plain sary, as it always has been murder, man, ignorant of law, should have a punishable with death, without the plain remedy against a man of a pro. benefit of clergy, to kill in a duel ; 1 fession possessing many advantages Hawk. Plea. ch. 1. sec. 21, page 122. in skill over him—that his statement The second of the slayer being an acshould be taken as prima facie true, the cessary before the fact, and a princi. same as the affidavits upon which the pal present when the murder was comrule was grounded by the previous mitted, aiding and abetting, is equally practice, requiring legal skill, not al guilty of murder, and subject to suffer ways, and in all situations to be so death : 1 Hawk. ch. 1, sec. 31, page

124. It is the law of every Christian is laughed at as a farce, and the parcountry in the known world. Notwith- ties turned over to the constable. standing the laws, sanctioned by the Many of this description challenge, concurring opinion of mankind for because they know the party challeng, centuries, it is gravely insisted (ac- ed will not fight; having a due regard companied by predictions of terrible for religion, the laws of his country, consequences) that it is not our duty and his family. The infamy or worth. to have them executed, because, it is lessness of the challenger generally is said, good character is not forfeited in such as to disgrace any decent man to this instance, and therefore, disquali- notice him. These pretenders to fication should not follow ; to prove bravery and gentlemanship, are always which, the acts of many English names absolute cowards ; for no man will in the last and present centuries are challenge another, knowing he either referred to, as also many in the United will not, or dare not fight, unless he States, who have sanctioned the prac. be cowardly. The officers of our army tice by being parties to duels, and who at present dare not fight; therefore it continued thereafter, equally distin. is a disgrace for one officer to chalguished members of society. Let us Jenge another. The most distinguish. examine the matter.

ed man in the service lately refused to It is true, as a part of the history of accept or reply to a challenge, from an our species, that many men of strong officer of equal rank, because he fearminds, have equally strong passions, ed his God, and the laws of his counwhich are ill-controlled, and subject try; he has met his due reward, by such men to grosser errors than others having accorded to him the unlimited with fewer mental advantages ; these approbation of his countrymen. are the men of worth that fight duels, Let it be once understood that the having no guide but hlind and reck- Bar of Tennesse dare not fight, and less passion when aroused, regard- it will be deemed cowardly to challess of their own lives or those of lenge a member of it; and this court others-hence their conduct furnishes solemnly warns every lawyer, that if the worst possible evidence upon which he violates the laws made to suppress to ground a rule for the government of duelling, we will strike him from the society. This class of duellists are rolls of the court, upon the fact being not less wicked than others we will made known to us. The truth is, such nam", but their standing renders it men are too often insolent and impumore difficult to punish them.

dent bullies, who tyrannize over, and Another set of men fight duels, (or impose upon all orderly men about rather make a show towards it,) to them; who literally dragoon society, gratify their vanity, by drawing upon by fear of personal violence, into sithemselves a little temporary notice, lence and seeming acquiescence, with which their personal worth or good respect to their conduct. That such conduct cannot procure

These are

a counsellor is a disgrace, and serious always worthless coxcombs, equally incumbrance to any court where he is destitute of bravery, virtue, or sense, permitted to practice, all will admit; whose feeble nerves would be shatter- those who engage in duels, the staed and prostrated at the sight of an tutes deem, and we will treat, as of this enemy in the field of battle, who are description. ridiculous in every situativn where Another class accept challenges, and courage or conduct is required. This even challenge and fight, for the very class of duellists do little harm other reason that they want true courage ; than to disturb the community ; they they have not moral and independent quarrel to make peace; or, if officious firmness enough to disregard the gidintermeddlers force them into a fight, dy assertions of that idle part of the are too much alarmed to hit, or per- community, who say a man is a cowhaps see their antagonist. The affair ard, because he refuses to fight; not

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that such people have either belief or hazard the assertion, not very deeply disbelief of what they say; they are stricken in the moral code, and much too light minded to form any settled better acquainted with their own pasconclusion, and repe it idly as the par- sions than the human heart ; they tell rot, what some revengeful neighbour us wicked vengeance, and murderous has before said, who gratifies his ma- crime, is redress! This is not the lice by mixing gall with the cup of precept our Saviour taught, our relianother. The pride, weak nerves, gion inculcates, and our laws enjoin ; and morbid sensibility of such a man malice, vengeance, and crime, have no force him to the pistol's mouth of a place but in the catalogue of iniquity. ruthless and unprincipled antagonist, If one respectable man says a harsh as feeble, trembling, and unresisting as and injurious thing of another, it is al. the lamb to the shambles, and with al- most uniformly in some moment of most an equal certainty of destruction, high excitement, in the bar or elsebecause he still more fears the detrac. where; the result of instant and antion of the malicious and the gossip gry passion, of which the offending of the giddy. The same principle of party in a few hours, when he ecomes human action often induces the deli- cool, is heartily ashamed; most wil. cate and sensitive female, with fear lingly would he make reparation if he and trembling, to assent to see herself had an opportunity ; but he cannot, made a widow, and her helpless in- nor will not, be bullied into it, by fants orphans, by the butchery of her threats of punishment; nothing more husband in a duel. Any man who

or less than this is a challenge. Let takes the life of another under such the offended party wait until the excircumstances, (forced upon him by citement has passed off, and he will wicked design,) can be truly said to generally find half the sin resting upon " have a heart regardless of all social himself: were the writer to judge order, and fatally bent upon mis. from his own experience, this would chief ;” and he should suffer death for be a small allowance. He should then the crime, because he has bullied his go to the offender in a firm, serious, antagonist into resistance, and then and just temper, and inquire of him murdered him.

the reason for the injury; he will then Nervous and timid men of the fore. hear his own fault for half the excuse, going description, if they come off un- the angry and excited passions of his slain, fail to obtain their object; socie- neighbour for the other half; here the ty will not believe them brave. There matter will end, almost as assuredly is an instinct in our nature that mocks as that God is just. I ask every gray. every art upon this subject; it tells us headed man in American society, did whether a man is, or is not, fearless; this course ever fail you, with a man upon all, from the tottering infant to worthy of your notice ? the savage bully, the same impression But this requires more moral couforces itself. The fearless man walks rage, and fearless firmness, than most through life without assault, and with- men are masters of; they prop their out reproach on his bravery, from those doubtful courage and trembling nerves, worthy his notice, although he may by applying to some supposed friend, continually have refused to fight duels. who often turns out to be one of those No man ever persuaded the world he malicious whisperers, and agitators of was fearless, unless the fact was so. duels, whose revengeful heart glories Should it be a reproach, that a weak in seeing his species murder each other and nervous man has not the courage in cold blood; generally, in addition, of a lion? It is a reflection upon God having some secret revenge to gratify and nature to require it.

against the offender, for which reason It is said single combat is often the he is but too often applied to. Here only redress that can be had for a per- the cunning machinations of malice sonal injury ; we apprehend those who have fair room for action ; a duel is of course advised, as the only redress particular, legislated to punish duela honour can allow of; every means is ling. used to bring it on; every sinister Taking the petition for true, and trick and argument is employed to how does the case of the defendant keep the principal firm to the despe. stand? By the laws of God, the laws rate purpose, who surrenders his judg- of England, from the days of the Ed. ment and his life into the hands of wards ; by the laws of Kentucky and wickedness, to be destroyed. Such Tennessee, and every civilized land, agitators have cold and cruel hearts, he is declared to have been guilty of dead to every moral sense or feeling of wicked, and malicious murder, and a humanity ; generally afraid to encoun- felon fled from justice. Is it possible, ter danger themselves, in the field of that any well balanced mind, can, for battle, or even in a ridiculous duel, a moment, believe that a man, whom wherein certainly ten cowards engage the law thus condemns, is a fit person to one brave man. Who ever heard to be an aider and adviser in the sancof a brave and fearless man exciting tuaries of justice ? and urging on another to a duel, to the We are told this is only a kind of destruction of himself, his poor unof- honourable homicide! The law knows fending wife, and helpless infants, it as a wicked and wilful murder, and 'without using all means possible to ad- it is our duty to treat it as such—we just it? No one. It is the working are placed here, firmly and fearlessly of cruelty, insidious cunning, and ma- to execute the laws of the land, not lice, under the seemly garb of friend- visionary codes of honour, framed to ship, that does this. Not such as subserve the purposes of destruction. these, but men of great moral worth, The cause will be remanded to the fearlessness and independence, should Maury circuit court, for the proofs to be applied to for advice and aid, who be heard by that court; what they will will generally settle the matter with a be, we know not, having only examinfew words of advice to the parties- ed the motion to quash : the compeperhaps laugh at the trifle that set the tency of the proofs we give no opinion passions in commotion; have some upon, nor their effect, further than the silly mistake explained, and end the petition sets them forth : to wit, a matter. The brave man is always true bill for murder, found in Simpson generous, feeling, and just; and others county, Kentucky; which, if proved submit to his judgment with pleasure. by the record to be the fact, we think

Such are duelling and its conse. amply sufficient to authorize the cirquences; and the characters of the cuit court to strike the defendant from men who engage in the practice; the roll of attorneys, had no statute to which, if it does not involve wicked- suppress duelling ever passed in Tenness and criminality, crime deserves nessee ; because the defendant stands no name, and morality no place in the charged with capital felony, and has, human heart—they do not exist, if this prima facie, forfeited his life. Were be not a crime.

we to permit him to practise law, TenTo restrain the blind and criminal nessee would be offered as a sanctuapassions, that drive to ruin the fearless ry to all flying from justice elsewhere; and valuable man; to restrain the those guilty of the highest crimes, wicked vanity of the noisy coxcomb; would be our advisers and aiders to and to protect from his misguided fears execute those laws, against which of giddy and idle ridicule, the physi. they had so grossly offended in a siscally weak and nervous man; have ter state. This would be a disgrace to mankind generally, and Tennessee in justice, and cannot be permitted.

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