THE DUEL
WHEN the system of revenge was replaced by the system of punishment,
the offended party generally lost the right of killing the offender.
But there are noteworthy exceptions to this rule. In a previous
chapter we have seen that, among various peoples, in cases involving
unusually great provocation, an avenger who slays his adversary is
either entirely excused by custom or law, or becomes subject to a
comparatively lenient punishment.[1] A few words still remain to be
said about the most persistent survival of the custom of exacting
vengeance with eventual destruction of life, the modern duel. But in
connection with this survival it seems appropriate to discuss the
practice of duelling in general, in its capacity of a recognised
social institution.
[Footnote 1: _Supra_, p. 290 _sqq._]
Duelling, or the fighting in single combat on previous challenge, is
sometimes resorted to as a means of bringing to an end hostilities
between different groups of people. Among the aborigines of New South
Wales "the war often ends in a single combat between chosen
champions."[2] In Western Victoria quarrels between tribes are
sometimes settled by duels between the chiefs, and the result is
accepted as final. "At other times disputes are decided by combat
between equal numbers of warriors, painted {498} with red clay and
dressed in war costume; but real fighting seldom takes place, unless
the women rouse the anger of the men and urge them to come to blows.
Even then it rarely results in a general fight, but comes to single
combats between warriors of each side; who step into the arena, taunt
one another, exchange blows with the liangle, and wrestle together.
The first wound ends the combat."[3] Among the Thlinkets feuds between
clans or families were commonly settled by duels between chosen
champions, one from each side.[4] Ancient writers tell us that among
the Greeks, Romans, and Teutons, combats were likewise agreed upon to
take place between a definite number of warriors, for the sake of
ending a war.[5] According to Tacitus, the Germans had the custom of
deciding the event of battle by a duel fought between some captive of
the enemy and a representative of the home army.[6] In all these
cases, as it seems, the duel originates in a desire for a speedy peace.
[Footnote 2: Fraser, _Aborigines of New South Wales_, p. 40.]
[Footnote 3: Dawson, _Australian Aborigines_, p. 77.]
[Footnote 4: Holmberg, 'Ethnographische Skizzen über die Völker des
russischen Amerika,' in _Acta Societatis Scientiarum Fennicæ_,
iv. 322 _sq._]
[Footnote 5: See Grotius, _De jure belli et pacis_, ii. 20. 43. 1;
Grimm, _Deutsche Rechtsalterthümer_, p. 928.]
[Footnote 6: Tacitus, _Germania_, 10.]
In other instances duels are fought for the purpose of settling
disputes between individuals, either by conferring on the victor the
right of possessing the object of the strife, or by gratifying a
craving for revenge and wiping off the affront.
Thus, among the pagan Norsemen, any person who confided in his
strength and dexterity with his weapons could acquire property by
simply challenging its owner to surrender his land or fight for it.
The combat was strictly regulated; the person challenged was allowed
to strike first, he who retired or who lost his weapon was regarded as
vanquished, and he who received the first wound, or who was most
seriously wounded, had to pay a fixed sum of money in order to save
his life.[7] In the {499} islands outside Kamchatka, if a husband
found that a rival had been with his wife, he would admit that the
rival had at least an equal claim to her. "Let us try, then," he would
say, "which of us has the greater right, and shall have her." After
that they would take off their clothes and begin to beat each other's
backs with sticks, and he who first fell to the ground unable to bear
any more blows, lost his right to the woman.[8] Among the Eskimo about
Behring Strait Mr. Nelson was told by an old man that in ancient
times, when a husband and a lover quarrelled about a woman, they were
disarmed by the neighbours and then settled the trouble with their
fists or by wrestling, the victor in the struggle taking the woman.[9]
Among the Chippewyans Richardson saw more than once a stronger man
assert his right to take the wife of a weaker countryman in
consequence of a successful combat. "Any one," he says, "may challenge
another to wrestle, and, if he overcomes, may carry off his wife as
the prize. . . . The bereaved husband meets his loss with the
resignation which custom prescribes in such a case, and seeks his
revenge by taking the wife of another man weaker than himself."[10] In
the tribes of Western Victoria, described by Mr. Dawson, a young chief
who cannot get a wife, and falls in love with one belonging to a chief
who has more than two, can, with her consent, challenge the husband to
single combat, and, if the husband is defeated, the conqueror makes
her his legal wife.[11] "In some points," says Mr. Riedel, "the
aboriginal law of retaliation in Australia corresponds with the code
of honour, so called, which certain classes in Europe have long
maintained. When one blackfellow carries off the {500} wife of
another, the injured husband and the betrayer meet in mortal combat;
and the spear that spills the life blood repairs the wounded honour of
the one, or justifies in the eyes of society the crime of the
other."[12] Among the aborigines of Western Australia "duels are
common between individuals who have private quarrels to settle, a
certain number of spears being thrown until honour is satisfied."[13]
Among the Dieyerie tribe, should anybody accuse another wrongfully, he
is challenged to fight by the person he has accused, and this settles
the matter.[14] Of the duels fought among the natives of
North-West-Central Queensland Dr. Roth gives us an interesting
account. Supposing an individual considers himself aggrieved, a duel
often takes place at a distance from camp. There is no intention of
killing. With two-handed swords, the combatants would only aim at
striking each other on the head; with spears, they would only make for
the fleshy parts of the thighs; with stone-knives, they would only cut
into the shoulders, flanks, and buttocks, producing gashes an inch or
more deep, and up to seven or even eight inches long. The lying upon
the back on the ground--a posture in which no lawful incisions with a
stone-knife can be made--is the sign of defeat, indicating that the
combatant has had enough, and gives in. But the matter has not yet
come to an end; the duels of these savages are not so defective in
point of justice as the modern duels of Europe. "The fight between the
two individuals being at length brought to a termination, steps are
taken by the old men and elders to inquire into the rights or wrongs
of the dispute. If the victor turns out to be the aggrieved party he
has to show good cause, as for instance that the man whom he had just
taken upon himself to punish had raped his gin, gave him the _munguni_
[or death-bone], or wrought him some similarly flagrant wrong: under
such circumstances, no further action is taken by anyone. If, {501} on
the other hand, the victor happens to be the aggrieved party only in
his own opinion, and not in that of those to whom he is answerable,
and who do not believe the grounds on which he commenced the fight to
be sufficient, he has to undergo exactly the same mutilations
subsequently at the hands of the vanquished as he himself had
inflicted." And should one of the combatants be killed in the duel,
which may sometimes happen, the survivor, unless he can show that he
had sufficient provocation or cause, "will be put to death in similar
manner, at the instance of the camp-council, and usually undergo the
extra degradation of digging his own as well as his victim's
grave."[15] Of the South American Charruas Azara writes:--"Ce sont les
parties elles-mêmes qui arrangent leurs différends particuliers: si
elles ne sont pas d'accord, elles se chargent à coups de poing,
jusqu'à ce qu'une des deux tourne le dos et laisse l'autre, sans
reparler de l'affaire. Dans ces duels, ils ne font jamais usage des
armes; et je n'ai jamais ouï dire qu'il y ait eu quelqu'un de
tué."[16] If an Apache kills another, "the next-of-kin to the defunct
individual may kill the murderer--if he can. He has the right to
challenge him to single combat, which takes place before all assembled
in the camp, and both must abide the result of the conflict. There is
no trial, no set council, no regular examination into the crime or its
causes; but the ordeal of battle settles the whole matter."[17] Among
the Central Eskimo, "strange as it may seem, a murderer will come to
visit the relatives of his victim (though he knows that they are
allowed to kill him in revenge) and will settle with them. He is
kindly welcomed, and sometimes lives quietly for weeks and months.
Then he is suddenly challenged to a wrestling match, and if defeated
is killed, or if victorious he may kill one of the opposite party, or
when hunting, he is {502} suddenly attacked by his companions and
slain."[18] Richardson heard that some of the Eskimo "decided their
quarrels by alternate blows of the fist, each in turn presenting his
head to his opponent."[19] The Tunguses formerly had a duel with
arrows called _koutschiguera_, which was fought "only in the presence
of the elders, who marked out the spot, settled the distance of the
combatants, and gave the signal for letting fly."[20] The Santals have
a tradition that years long since there was a custom amongst them "of
deciding their disputes, when the parties were males, by the ordeal of
single combat. The bow and arrow or hanger served in lieu of pistol
and sword for these rustic duels. Such affairs of honour were always
fatal to one party, but of late times, as equitable remedies have been
brought nearer to them, this remnant of a barbarous age has
disappeared.**"[21] Mr. Man also heard that the Kols at one time
preferred the duel to any other mode of seeking redress for a
wrong.[22] The ancient Swedes were even compelled by law to fight
duels to repair their wounded honour. The so-called 'Hedna-lag,' a
fragment of an old pagan law, prescribes that, if any man says to
another, "You are not a man's equal, you have not the heart of a man,"
and the other replies, "I am a man as good as you," they shall
encounter in a place where three roads meet. If he who has suffered
the insult does not appear, he shall be held to be what the other one
called him, and he shall henceforth be allowed neither to swear nor to
give evidence in any case. If, on the other hand, they meet in single
combat, and the offended party kills the offender, he shall have to
pay no compensation for it; but if the offender kills his opponent, he
shall pay half his price.[23]
[Footnote 7: Lea, _Superstition and Force_, p. 111 _sq._ Keyser,
_Efterladte Skrifter_, ii. pt. i. 391. Weinhold, _Altnordisches
Leben_, p. 297. von Amira, 'Recht,' in Paul's _Grundriss der
germanischen Philologie_, iii. 217 _sq._ Arnesen, _Historisk
Indledning til den gamle og nye Islandske Raettergang_, p. 158 _sq._
Rosenberg, _Traek af Livet paa Island i Fristats-Tiden_, p. 98 n.]
[Footnote 8: Steller, _Beschreibung von dem Lande Kamtschatka_, p. 348.]
[Footnote 9: Nelson, 'Eskimo about Behring Strait,' in _Ann. Rep. Bur,
Ethn._ xviii. 292.]
[Footnote 10: Richardson, _Arctic Searching Expedition_, ii. 24 _sq._]
[Footnote 11: Dawson, _op. cit._ p. 36. For other instances of rights
to women being acquired by duels, see Westermarck, _History of Human
Marriage_, p. 159 _sqq._; Post, _Afrikanische Jurisprudenz_, ii. 23
_sq._ (people of Kordofan).]
[Footnote 12: Riedel, _Aborigines of Australia_, p. 6.]
[Footnote 13: Calvert, _Aborigines of Western Australia_, p. 22.]
[Footnote 14: Gason, 'Manners and Customs of the Dieyerie Tribe,' in
Woods, _Native Tribes of South Australia_, p. 266.]
[Footnote 15: Roth, _Ethnological Studies among the North-West-Central
Queensland Aborigines_, p. 139 _sq._]
[Footnote 16: Azara, _Voyages dans l'Amérique méridionale_, ii. 16.]
[Footnote 17: Cremony, _Life among the Apaches_, p. 293.]
[Footnote 18: Boas, 'Central Eskimo,' in _Ann. Rep. Bur. Ethn._ vi. 582.]
[Footnote 19: Richardson, _Arctic Searching Expedition_, i. 367 _sq._]
[Footnote 20: Georgi, _Russia_, iii. 83.]
[Footnote 21: Man, _Sonthalia and the Sonthals_, p. 90.]
[Footnote 22: _Ibid._ p. 90.]
[Footnote 23: Leffler, _Om den fornsvenska hednalagen_, p. 40 _sq._
(in _K. Vitterhets Historie och Antiqvitets Akademiens Månadsblad_,
1879, p. 139 _sq._). Professor Leffler is inclined to believe that
this fragment once formed a part of the older Vestgötalag (_op. cit._
p. 35, in the _Månadsblad_, p. 134).]
{503} These customs and rules are due to a variety of circumstances.
To recognise the duel as a means of acquiring a right to land or
women, is a concession to superior strength in a society where there
is no government, or where the government is weak; whilst in the
opportunity given to the challenged party to oppose the avenger on
equal terms we may trace the interfering influence of public opinion.
The duel is also in a higher degree than downright violence calculated
to bring about a definite arrangement; and in some cases, as we have
seen, it is a mere sham-fight, which may serve as a preventive against
the infliction of more serious injuries, by showing which party is the
weaker and, consequently, has to give in. In other cases, again, the
challenge is a method of bringing forward an offender who otherwise
might be out of reach, and of limiting the fight to the parties
themselves, so as to prevent whole families from making war upon each
other.[24] Moreover, a duel may be preferable to an ordinary act of
revenge as a means of wiping off an affront and of satisfying the
claims of honour; it displays more courage, it commands more respect.
In several of the cases referred to it is obviously a mitigated form
of revenge, a method of settling a point of honour in a comparatively
harmless way, and as such it has certain advantages over the practice
of compensation; it requires no wealth on the part of the offender,
and allows of no doubt as to the courage of the sufferer.[25] The
Queensland aborigines are said to be very proud of the wounds they
receive in their single combats,[26] and the duelling Eskimo "consider
it cowardly to evade a stroke."[27] The duel {504} may, finally, be
regarded as the most equitable form of settling disputes in cases
where both parties claim to be in the right. Sometimes it is even
resorted to as a means of ascertaining the truth, as an ordeal or
"judgment of God."
[Footnote 24: _Cf._ Arnesen, _op. cit._ pp. 150, 166 _sq._]
[Footnote 25: According to Dr. Steinmetz, the origin of the duel is
"die Beschränkung des Rachekampfes. . . . Die treibende Kraft, welche
zu dieser duellartigen Beschränkung führte, war die Exogamie, die
verwandtschaftlichen Beziehungen zwischen Gruppen, der Friedensverlangen
erzeugende, erweiterte Verkehr derselben. Negative Bedingungen waren:
das Fehlen einer rechtsprechenden centralen Regierungsgewalt, und das
nicht Erfülltsein der Entwicklungsbedingungen der Composition,
namentlich der Mangel an ökonomischen Gütern, welche die materielle
Entschädigung unmöglich machte" (Steinmetz, _Studien zur ersten
Entwicklung der Strafe_, ii. 67, 87).]
[Footnote 26: Roth, _op. cit._ p. 140.]
[Footnote 27: Richardson, _Arctic Searching Expedition_, i. 368.]
The wager of battle is well known to every student of mediæval law.
Outside Europe we meet with a similar institution in the Malay
Archipelago. In his 'History of the Indian Archipelago,' Mr. Crawfurd
states:--"The trial by combat or duel, and the appeal to the judgment
of God by various descriptions of ordeal, are not unknown. The Malay
laws direct that the combat or ordeal shall be had recourse to in the
absence of evidence, in the following words: 'If one accuse and
another deny, and there be no witnesses on either side, the parties
shall either fight or submit to the ordeal of melted tin or boiling
oil.'"[28] The natives of the Barito River basin in Borneo have the
following ordeal, called the _Hagalangang_:--"Both parties are placed
in boxes at a distance of seven fathoms opposite one another, the
boxes being made of nibong laths and so high as to reach a man's
breast. Then both receive a sharpened bamboo of a lance's length to
throw at each other at a given signal. The wounded person is supposed
to be guilty."[29] Among the Teutons the judicial combat seems to have
developed out of the ancient practice of settling disputes by private
duelling. In a time when the community did its best to suppress acts
of revenge, it was no doubt a wise measure to adopt the duel as a form
of judicial procedure, investing it with the character of an
ordeal.[30] It seems probable that the duel assumed this character
already among the pagan Teutons.[31] Like other ordeals it was
resorted to in cases where there was some doubt as to the guilt of the
accused.[32] To {505} appeal to "the judgment of God" was an expedient
substitute for human evidence in a society where nothing was more
difficult than to procure reliable witnesses, and where superstition
reigned supreme. Speaking of the Franks, M. Esmein observes:--"En
dehors du flagrant délit ou de l'aveu de l'accusé, tout était
incertitude. . . . Par solidarité forcée, jamais un homme ne
témoignera contre un autre homme du même groupe; il ne témoignera pas
non plus par crainte de la vengeance et des représailles contre un
homme appartenant à un autre groupe."[33] I shall later on try to
prove that the ordeal is not, as it is often supposed to be,
primordially based on the belief in an all-knowing, all-powerful, and
just god, who protects the innocent and punishes the guilty, but that
it largely springs from the same notion as underlies the belief in the
efficacy of an oath. The ordeal, then, intrinsically involves an
imprecation with reference to the guilt or innocence of a suspected
person, and its proper object is to give reality to this imprecation,
for the purpose of establishing the validity or invalidity of the
suspicion. This also holds good of the judicial combat. The issue of
the fight decided the question of guilt because of the imprecation
involved in the oath preceding the duel. Before the conflict commenced
each party asserted his good cause in the most positive manner,
confirmed his assertion by a solemn oath on the Gospels or on a relic
of approved sanctity, and called upon God to grant victory to the
right. Such an oath was an indispensable preliminary to every combat,
and the defeat was thus not merely the loss of the suit, but also a
conviction of perjury, to be punished as such.[34] That the real
object of the judicial duel was to correct the abuses of compurgation
by oath appears from various {506} facts. Gundebald, king of the
Burgundians, says expressly, in the preamble to a law by which he
authorises the wager of battle, that his reason for doing so is, that
his subjects may no longer take oaths upon uncertain matters, or
forswear themselves upon certain.[35] Charlemagne urged the use of the
duel as greatly preferable to the shameless oaths which were taken
with so much facility, and Otho II. ordered its employment in various
forms of procedure for the same reason.[36] Witnesses might have to
fight as well as principals. A Bavarian law even directed the claimant
of an estate to combat not the defendant, but his witness;[37] and in
the later Middle Ages, after enlightened legislators had been
strenuously and not unsuccessfully endeavouring to limit the abuse of
the judicial combat, the challenging of witnesses was still the
favourite mode of escaping legal condemnation.[38] Some codes required
the witnesses to come into court armed, and to have their weapons
blessed on the altar before giving their testimony.[39] The practice
of blessing the arms before the duel took place[40] was no doubt
intended to enable them the better to carry out the imprecation by
saturating them with sanctity, or by increasing their natural
sanctity; weapons are commonly regarded with superstitious veneration,
hence oaths taken upon them are held to be particularly binding.[41]
But though the judicial duel fundamentally derived its efficacy as a
means of ascertaining the truth from its connection with an oath, it
has, owing to the tendency of magic to fuse into religion, readily
come to be regarded as an appeal to the justice of God, just as curses
are transformed into {507} prayers and perjury becomes an offence
against the Deity.
[Footnote 28: Crawfurd, _History of the Indian Archipelago_, iii. 92.]
[Footnote 29: Schwaner, _Borneo_, i. 212.]
[Footnote 30: Dahn observes (_Bausteine_, ii. 57) that "der Kampf
ursprünglich gar kein Gottesurtheil, sondern lediglich eine Verweisung
der Parteien auf Selbsthülfe . . . war." _Cf._ Patetta, _Le ordalie_,
p. 178.]
[Footnote 31: Patetta, _op. cit._ p. 179.]
[Footnote 32: See Unger, 'Der gerechtliche Zweikampf bei den
germanischen Völkern,' in _Göttinger Studien_, 1847, Zweite
Abtheilung, p. 358 _sq._]
[Footnote 33: Esmein, _Cours élémentaire du droit français_, p. 96 _sq._]
[Footnote 34: _Lex Baiuwariorum_, ii. 1. Jourdan, Decrusy, and
Isambert, _Recueil général des anciennes lois françaises_, ii. 840
_sqq._ Bracton, _De Legibus et Consuetudinibus Angliæ_, fol. 141 b
_sq._, vol. ii. 438 _sqq._: "Sic me Deus adjuvet & haec sancta." Lea,
_Superstition and Force_, p. 166 _sq._ Brunner, _Deutsche
Rechtsgeschichte_, ii. 415. von Amira, 'Recht,' in Paul's _Grundriss
der germanischen Philologie_, iii. 218. Unger, _loc. cit._ p. 386.
Tuchmann, in _Mélusine_, iv. 130.]
[Footnote 35: _Leges Burgundionum_, Leges Gundebati, 45.]
[Footnote 36: Lea, _op. cit._ p. 118.]
[Footnote 37: _Lex Baiuwariorum_, xvii. 2 (xvi. 2).]
[Footnote 38: Beaumanoir, _Coutumes du Beauvoisis_, lxi. 58, vol. ii.
398. Lea, _op. cit._ p. 120 _sq._ Unger, _loc. cit._ p. 379 _sqq._]
[Footnote 39: Lea, _op. cit._ p. 120.]
[Footnote 40: Esmein, _op. cit._ p. 95.]
[Footnote 41: For the worship of, and swearing by, weapons, see Du Cange,
'Juramentum super arma,' in _Glossarium ad scriptores mediæ et infimæ
Latinitatis_, iii. 1616 _sq._; Grimm, _Deutsche Rechtsalterthümer_,
pp. 165, 166, 896; Pollock, _Oxford Lectures_, p. 269 _sq._ n. 1;
Joyce _Social History of Ancient Ireland_, i. 286 _sq._ In Morocco,
also, an oath taken on a weapon is considered a particularly solemn
form of swearing.]
In most European countries the judicial duel survived the close of the
Middle Ages, but disappeared shortly afterwards.[42] Various
circumstances contributed to its decline and final disappearance. From
an early period Councils and popes had declared against it,[43] but
with little success; many ecclesiastics, indeed, not only connived at
the practice, but authorised it, and questions concerning the property
of churches and monasteries were decided by combat.[44] There were
other more powerful causes at work--the growth of communes, devoted to
the arts of peace, seeking their interest in the pursuits of industry
and commerce, and enjoying the advantage of settled and permanent
tribunals; the revival of Roman law, which began to undermine all the
institutions of feudalism;[45] the ascendency of the royal power in
its struggle against the nobles; the increase of enlightenment, the
decrease of superstition. But though finally banished from the courts
of justice, the duel did not die. In the sixteenth century, when the
judicial combat faded away, the duel of honour began to flourish.[46]
Buckle justly observes that, "as the trial by battle became disused,
the people, clinging to their old customs, became more addicted to
duelling";[47] hence the judicial duel may be regarded as the direct
parent of the modern duel.[48] The Church and the State naturally
tried to suppress this sanguinary survival of barbarism. The Council
of Trent declared that "the detestable custom of duelling, introduced
by the contrivance of the devil, that by the bloody death of the body
{508} he may accomplish the ruin of the soul," was to be utterly
exterminated from the Christian world, and that not only principals
and seconds, but anyone who had given counsel in the case of a duel,
or had in any other way persuaded a person thereunto, as also the
spectators thereof, should be subjected to excommunication and
perpetual malediction.[49] In England, Cromwell's Parliament made a
determined effort to check the practice.[50] A Scotch law of 1600
rendered the bare act of engaging in a duel, without license from the
king, a capital offence.[51] About the same period the Spanish Cortes
passed a law which subjected all parties to a duel to the penalties of
treason.[52] In 1602, Henry IV. of France issued an edict condemning
to death whoever should give or accept a challenge or act as
second;[53] and already several edicts against duelling had been
promulgated under Louis XIII.[54] when, in 1626, there was published a
new one punishing with death any person who had killed his adversary
in a duel, or had been found guilty of sending a challenge a second
time.[55] But all these enactments had little or no effect. We are
told that in the eight years between 1601 and 1609, two thousand men
of noble birth fell in duels in France; and, according to Lord Herbert
of Cherbury, who was ambassador at the court of Louis XIII., there was
scarce a Frenchman worth looking on who had not killed his man in a
duel.[56] As Robertson observes, in reference to duelling, "no custom,
how absurd soever it may be, if it has subsisted long, or derives its
force from the manners and prejudices of the age in which it prevails,
was ever abolished by the bare promulgation of laws and statutes."[57]
In spite of laws which directly prohibit duelling, or which punish
with great severity anyone who kills another in a duel, sometimes even
subjecting {509} him to punishment for murder,[58] the duel still
prevails in many European countries as a recognised custom, so much
supported by public opinion that the laws referring to it are seldom
or never applied.
[Footnote 42: Lea, _op. cit._ p. 199 _sqq._ In England, however, it
was formally abolished by law as late as 1819 (Stephen, _History of
the Criminal Law of England_, i. 249 _sq._).]
[Footnote 43: Du Boys, _Histoire du droit criminel des peuples
modernes_, ii. 182. Lea, _op. cit._ p. 206 _sqq._]
[Footnote 44: Robertson, _History of the Reign of the Emperor Charles
V._ i. 357 _sq._ 'Notitia gurpitionis,' in Bouquet, _Recueil des
historiens des Gaules et de la France_, ix. 729.]
[Footnote 45: Lea, _op. cit._ pp. 200-205, 211 _sq._ Unger, _loc.
cit._ p. 392 _sqq._]
[Footnote 46: Storr, 'Duel,' in _Encyclopædia Britannica_, vii. 512.]
[Footnote 47: Buckle, _Miscellaneous and Posthumous Works_, i. 386.
_Cf._ Bosquett, _Treatise on Duelling_, p. 79.]
[Footnote 48: Storr, _loc. cit._ p. 511.]
[Footnote 49: _Canons and Decrees of the Council of Trent_, Session
xxv. 19, p. 274 _sq._]
[Footnote 50: Pike, _History of Crime in England_, ii. 192.]
[Footnote 51: Hume, _Commentaries on the Law of Scotland_, ii. 281.
Erskine, _Principles of the Law of Scotland_, p. 560.]
[Footnote 52: Truman, _Field of Honor_, p. 70.]
[Footnote 53: Isambert, Taillandier, and Decrusy, _Recueil général des
anciennes lois françaises_, xv. 351 _sq._]
[Footnote 54: _Ibid._ xvi. 21, 106, 146.]
[Footnote 55: _Ibid._ xvi. 176, 179.]
[Footnote 56: Storr, _loc. cit._ p. 512.]
[Footnote 57: Robertson, _op. cit._ i. 66.]
[Footnote 58: Günther, _Die Idee der Wiedervergeltung_, iii. 225, n.
467. Stephen, _History of the Criminal Law of England_, iii. 99 _sqq._
Gelli, _Il duello_, p. 21.]
This curious practice of taking the law into one's own hands, which we
find existing in the midst of modern civilisation, is explicable,
partly from the indifference with which legislators have treated
offences against honour,[59] partly from the force of habit. The
insulted person, finding no adequate legal remedy for the affront he
has suffered, determines to be his own avenger, and challenges the
offender to fight. Nor is revenge his only motive. He desires also to
wash off the indignity by showing that he respects his honour more
than his life. The notion that a challenge to mortal combat effaces
the blot which an insult has imprinted upon a man's honour is a
survival from a period when the honourable man was above everything a
brave man.[60] By displaying courage the offended party demonstrates
that he is not worthy of contempt, by showing timidity he condemns
himself. So far as justice is concerned, the duel, of course, became
an absurdity as soon as it ceased to be looked upon in the light of an
ordeal. It compels the insulted person to expose himself to a fresh
injury from the side of an impudent offender, it allows the scoundrel
to repay the most condign censure with a mortal stroke. But when a
man's honour is at stake the voice of justice is easily silenced, and
the pressure of ancient habit is greater than ever. As is usual in
similar cases, a variety of more or less futile arguments are adduced
to give their support to the survival. Lord Kames maintained that, if
two persons agree to decide their quarrel by single combat, the State
has nothing to do with it, since they need not make use of the
protection which the State offers them.[61] But, as a matter of fact,
the {510} duel is not a private affair between two individuals. As
Moore observed, "a refusal of the duel is attended with such
mortifying circumstances, with such an imputation of meanness and
cowardice . . . , with such a studied contempt in public, and
exclusion from the polite circle in private, as renders the
alternative both cruel and inhuman";[62] and it would seem that the
State ought to protect its members against such a compulsion. It is
said that the duel "grasps the sword of justice, which the laws have
dropped, punishing what no code can chastise--contempt and
insult."[63] But we find that in countries where it no longer
prevails, laws against insults, courts of honour, and especially more
refined ideas as regards honorary satisfaction, have made it as
useless as it is absurd, a matter of the past which nobody desires to
revive.
[Footnote 59: _Cf._ Bentham, _Theory of Legislation_, p. 299 _sqq._]
[Footnote 60: That the modern duel is a special development of
Chivalry has been pointed out by Buckle (_History of Civilization in
England_, ii. 136 _sq._).]
[Footnote 61: Kames, _Sketches of the History of Man_, i. 415 n.]
[Footnote 62: Moore, _Full Inquiry into the Subject of Suicide_,
ii. 276.]
[Footnote 63: Quoted by Millingen, _History of Duelling_, i. 300.]