¶1The opinion of the Court was delivered by
¶2Assuredly there is room for a difference of opinion, whether the defendant seriously challenged the prosecutor to fight a duel or not. Much depends upon the habits and character of the parties. But this Court cannot say that a challenge may not be given in this open, public and boisterous way, though very unusual indeed. The Act forbids the first step towards a duel, and punishes the challenger. Its policy is, to intercept the first step towards a battle ; its maxim, obsta principiis.
¶3We can lay down 110 general rules. The law *makes every serious challenge to fight a duel, penal; and the proper tribunal have said, there was a serious challenge in this case. Now, can we gainsay the conclusion drawn ? By no means. Though the testimony may possibly not prove it to every man, considering the characters engaged. Yet, with other characters, such testimony would be demonstration, to every man, of the serious intention of the defendant. There is no room, then, for us to interfere. And we can only warn, by these instances, the unskilful, as well as those more thoroughbred, to beware of this dangerous tool, which may wound deeply; though the fashionable form was not practised in the use, nor any blood shed. The sole question is, was it intended to shed blood in a duel ? The case of Wilson Saunders, was, it is true, much like the case before us, in point of testimony, except in the after acknowledgment made by this defendant to Chapman, that he had offered to fight, &c., &c. But that case was received with great favor indeed ; because the presiding judge had advised the jury to find Saunders guilty, in order to try if such a challenge could be brought within the then recent Act; of which the Court had no doubt; but sent the case to be tried upon the only proper inquiry — was there a serious challenge to fight a dnel ? Which should have been sent to the jury un-biassed by any recommendation to find a particular verdict, in order to try the law.
¶4The motion is refused.
¶5See Ante, 13 and 16, note, 2 MoO. 335 ; 3 Brev. 243, or 1 Tread. 709.