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 distin. guished 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.

These are

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. 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 challeng ed 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 sta tutes 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 community, 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 repeat 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.

In the construction of that section, the court has never required that the treaty, or act of congress, under which the party claims, who brings the final judgment of a state court into review before this court, should have been pleaded specially, or spread on the record. But it has always been deemed essential to the exercise of jurisdiction in such a case, that the record should show a complete title under the treaty or act of congress, and that the judgment of the court is in violation of that treaty or act. The condition in the cession act, on which the plaintiffs in error rely, is in these words: "That all persons, who, on the 27th day of October 1795, were actually settlers within the territory thus ceded, shall be confirmed in all the grants, legally and fully executed prior to that day, by the former British government of West Florida,or by the government of Spain." The plaintiff's produce a grant, legally and fully executed; but to bring the case under the treaty, they must also prove, that the ancestor or person under whom they claim, was an actual settler, on the 27th October, 1795. The answer asserts, that the warrant of survey issued on the 7th day of February, 1793, and the survey made on the 20th July, in the same year, when possession was taken; and that the patent issued on the 3d April,1794. James Williams deposes, that about the 3d December, 1795, he took possession of the tract of land in dispute, as overseer for James Mather the pa

tentee, and understood from him, that he had gone to Natchez some time before, to apply for land in the part of the country where the tract in controversy lies. This is the testimony furnished by the record, to prove that James Mather, the grantee, was an actual settler, according to the requisition of the cession act of Georgia. In Henderson vs. Poindexter, 12 Wheat. 530, the term "actual settler," seems to have been understood as synonymous with the resident of the country. That case, however, did not require that the precise meaning of the term should be fixed, and the court is disposed to think, that a settlement made on the land by another person, who cultivated it for the proprietor would be sufficient; though the proprietor should not reside in person on the estate, or within the territory. Had the settlement proved by Williams, been made at the day required by the cession act, it would, we think, have satisfied the requisition of that act, and entitled the plaintiffs in error to the benefit of the condition. But it was not made until the 3d of December, 1795. We think then, that the plaintiffs in error have failed to prove, that the person under whom they claim, was an actual settler on the 27th day of October, 1795; and that the court has no jurisdiction of the cause.

The writ of error dismissed, it not appearing that this court has jurisdiction of the cause.

These cases were brought before the court, upon appeal from the circuit court of the United States, for the district of Georgia. They arose out of the following circumstances: Juan Madrazo, a Spaniard, domiciliated at Havana, sent in 1817, the schooner Isabelita, belonging to him, on a slave voyage to the coast of Africa.

On her return with a cargo of slaves,

she was captured by the Successor, a piratical cruiser, under the flag of Com. Aury-the said cruiser having been fitted out in the port of Baltimore, and manned and equipped in our waters. The prize and slaves were carried to Amelia Island, and there condemned by a pretended court of admiralty, instituted by Aury, and sold under its authority to William Bowen, who