From Classic Encyclopedia 1911
DUEL (Ital. duello, Lat. duellum - old form of bellum - from duo, two), a prearranged encounter between two persons, with deadly weapons, in accordance with conventional rules, with the object of voiding a personal quarrel or of deciding a point of honour. The first recorded instance of the word occurs in Coryate's Crudities (1611), but Shakespeare has duello in this sense, and uses " duellist " of Tybalt in Romeo and Juliet. In its earlier meaning of a judicial combat we find the word latinized in the Statute of Wales (Edw. I., Act 12), " Placita de tennis in partibus istis non habent terminari per duellum." Duels in the modern sense were unknown to the ancient world, and their origin must be sought in the feudal age of Europe. The single combats recorded in Greek and Roman history and legend, of Hector and Achilles, Aeneas and Turnus, the Horatii and Curiatii, were incidents in national wars and have nothing in common with the modern duel. It is, however, noteworthy that in Tacitus (Germania, cap. x.) we find the rudiments of the judicial duel (see Wager, for the wager of battle). Domestic differences, he tells us, were settled by a legalized form of combat between the disputants, and when a war was impending a captive from the hostile tribe was armed and pitted against a national champion, and the issue of the duel was accepted as an omen. The judicial combat was a Teutonic institution, and it was in fact an appeal from human justice to the God of battles, partly a sanction of the current creed that might is right, that the brave not only will win but deserve to win. It was on these grounds that Gundobald justified, against the complaints of a bishop, the famous edict passed at Lyons (A.D. 501) which established the wager of battle as a recognized form of trial. It is God, he argued, who directs the issue of national wars, and in private quarrels we may trust His providence to favour the juster cause. Thus, as Gibbon comments, the absurd and cruel practice of judicial duels, which had been peculiar to some tribes of Germany, was propagated and established in all the monarchies of Europe from Sicily to the Baltic. Yet in its defence it may be urged that it abolished a worse evil, the compurgation by oath which put a premium on perjury, and the ordeal, or judgment of God, when the cause was decided by blind chance, or more often by priestcraft.
Those who are curious to observe the formalities and legal rules of a judicial combat will find them described at length in the 28th book of Montesquieu's Esprit des lois. On these regulations he well remarks that, as there are an infinity of wise things conducted in a very foolish manner, so there are some foolish things conducted in a very wise manner. For our present purpose it is sufficient to observe the development of the idea of personal honour from which the modern duel directly sprang. In the ancient laws of the Swedes we find that if any man shall say to another, " You are not a man equal to other men," or " You have not the heart of a man," and the other shall reply, " I am a man as good as you," they shall meet on the highway, and then follow the regulations for the combat. What is this but the modern challenge ? By the law of the Lombards if one man call another arga, the insulted party might defy the other to mortal combat. What is arga but the dummer Junger of the German student ? Beaumanoir thus describes a legal process under Louis le Debonnaire: - The appellant begins by a declaration before the judge that the appellee is guilty of a certain crime; if the appellee answers that his accuser lies, the judge then ordains the duel. Is not this the modern point of honour, by which to be given the lie is an insult which can only be wiped out by blood ?
From Germany the judicial combat rapidly spread to France, where it flourished greatly from the 10th to the 12th century, the period of customary law. By French kings it was welcomed as a limitation of the judicial powers of their half independent vassals. It was a form of trial open to all freemen and in certain cases, as under Louis VI., the privilege was extended to serfs. Even the church resorted to it not unfrequently to settle disputes concerning church property. Abbots and priors as territorial lords and high justiciaries had their share in the confiscated goods of the defeated combatant, and Pope Nicholas when applied to in 858 pronounced it " a just and legitimate combat." Yet only three years before the council of Valence had condemned the practice, imposing the severest penance on the victor and refusing the last rites of the church to the vanquished as to a suicide. In 1385 a duel was fought, the result of which was so preposterous that even the most superstitious began to lose faith in the efficacy of such a judgment of God. A certain Jacques Legris was accused by the wife of Jean Carrouge of having introduced himself by night in the guise of her husband whom she was expecting on his return from the Crusades. A duel was ordained by the parlement of Paris, which was fought in the presence of Charles VI. Legris was defeated and hanged on the spot. Not long after, a criminal arrested for some other offence confessed himself to be the author of the outrage. No institution could long survive so open a confutation, and it was annulled by the parlement. Henceforward the duel in France ceases to be an appeal to Heaven, and becomes merely a satisfaction of wounded honour. Under Louis XII. and Francis I. we find the first vestiges of tribunals of honour. The last instance of a duel authorized by the magistrates, and conducted according to the forms of law, was the famous one between Francois de Vivonne de la Chataignerie and Guy Chabot de Jarnac. The duel was fought on the 10th of July 1547 in the courtyard of the château of St Germain-en-Laye, in the presence of the king and a large assembly of courtiers. It was memorable in two ways. It enriched the French language with a new phrase; a sly and unforeseen blow, such as that by which de Jarnac worsted La Chataignerie, has since been called a coup de Jarnac. And Henry, grieved at the death of his favourite, swore a solemn oath that he would never again permit a duel to be fought. This led to the first of the many royal edicts against duelling. By a decree of the council of Trent (cap. xix.) a ban was laid on " the detestable use of duels, an invention of the devil to compass the destruction of souls together with a bloody death of the body." In England, it is now generally agreed, the wager of battle did not exist before the time of the Norman Conquest. Some previous examples have been adduced, but on examination they will be seen to belong rather to the class of single combats between the champions of two opposing armies. One such instance is worth quoting as a curious illustration of the superstition of the time. It occurs in a rare tract printed in London, 1610, The Duello, or Single Combat. " Danish irruptions and the bad aspects of Mars having drencht the common mother earth with her sonnes' blood streames, under the reigne of Edmund, a Saxon monarch, misso in compendium (so worthy Camden expresseth it) bello utriusque geniis fata Edmundo Anglorum et Canuto Danorum regibus commissa fuerunt, qui singulars certamine de summa imperij in hac insula (that is, the Eight in Glostershire) depugnarunt." By the laws of William the Conqueror the trial by battle was only compulsory when the opposite parties were both Normans, in other cases it was optional. As the two nations were gradually merged into one, this form of trial spread, and until the reign of Henry II. it was the only mode for determining a suit for the recovery of land. The method of procedure is admirably described by Shakespeare in the opening scene in Richard II., where Henry of Bolingbroke, duke of Hereford, challenges Thomas, duke of Norfolk; in the mock-heroic battle between Horner the Armourer and his man Peter in Henry VI.; and by Sir W. Scott in the Fair Maid of Perth, where Henry Gow appears before the king as the champion of Magdalen Proudfute. The judicial duel never took root in England as it did in France. In civil suits it was superseded bythe grand assize of Henry II., and in cases of felony by indictment at the prosecution of the crown. One of the latest instances occurred in the reign of Elizabeth, 1571, when the lists were actually prepared and the justices of the common pleas appeared at Tothill Fields as umpires of the combat. Fortunately the petitioner failed to put in an appearance, and was consequently nonsuited (see Spelman, Glossary, s.v. " Campus "). As late as 1817 Lord Ellenborough, in the case of Thornton v. Ashford,. pronounced that " the general law of the land is that there shall be a trial by battle in cases of appeal unless the party brings himself within some of the exceptions." Thornton was accused of murdering Mary Ashford, and claimed his right to challenge the appellant, the brother of the murdered girl, to wager of battle. His suit was allowed, and, the challenge being refused,, the accused escaped. Next year the law was abolished (59: Geo. III., c. 46).
In sketching the history of the judicial combat we have traced the parentage of the modern duel. Strip the former of its legality, and divest it of its religious sanction, and the latter remains. We are justified, then, in dating > the commencement of duelling from the abolition of the wager of battle. To pursue its history we must return to France, the country where it first arose, and the soil on which it has most flourished. The causes which made it indigenous to France are sufficiently explained by the condition of society and the national character. As Buckle has pointed out, duelling is a special development of chivalry, and chivalry is one of the phases of the protective spirit which was predominant in France up to the time of the Revolution. Add to this the keen sense of personal honour, the susceptibility and. the pugnacity which distinguish the French race. Montaigne, when touching on this subject in his essays, says, " Put three Frenchmen together on the plains of Libya, and they will not be a month in company without scratching one another's eyes out." The third chapter of d'Audiguier's Ancien usage des duels is headed, " Pourquoi les seuls Frangais se battent en duel." English literature abounds with allusions to this characteristic of the French nation. Lord Herbert of Cherbury, who was ambassador at the court of Louis XIII., says, " There is scarce a Frenchman worth looking on who has not killed his man in a duel." Ben Jonson, in his Magnetic Lady, makes Compass, the scholar and soldier, thus describe France, " that garden of humanity": " There every gentleman professing arms Thinks he is bound in honour to embrace The bearing of a challenge for another, Without or questioning the cause or asking Least colour of a reason." Duels were not common before the 16th century. Hallam attributes their prevalence to the barbarous custom of wearing swords as a part of domestic dress, a fashion which was not introduced till the later part of the i 5th century. In 1560 the states-general at Orleans supplicated Charles IX. to put a stop to duelling. Hence the famous ordinance of 1566, drawn up by the chancellor de 1'Hopital, which served as the basis of the successive ordinances of the following kings. Under the frivolous and sanguinary reign of Henry III., " who was as eager for excitement as a woman," the rage for duels spread till it became almost an epidemic. In 1602 the combined remonstrances of the church and the magistrates extorted from the king an edict condemning to death whoever should give or accept a challenge or act as second. But public opinion was revolted by such rigour, and the statue remained a dead letter. A duel forms a fit conclusion to the reign. A hair-brained youth named L'Isle Marivaux swore that he would not survive his beloved king, and threw his cartel into the air. It was at once picked up, and Marivaux soon obtained the death he had courted. Henry IV. began his reign by an edict against duels, but he was known in private to favour them; and, when de Crequi asked leave to fight Don Philip of Savoy, he is reported to have said, " Go, and if I were not a king I would be your second." Fontenay-Mareuil says, in his Memoires, that in the eight years between 1601 and 1609, 2000 men of noble birth fell in duels. In 1609 a more effective measure was taken at the instance of Sully by the establishment of a court of honour. The edict decrees that all aggrieved persons shall address themselves to the king, either directly or through the medium of the constables, marshals, &c.; that the king shall decide, whether, if an accommodation could not be effected, permission to fight should be given; that the aggressor, if pronounced in the wrong, shall in any case be suspended from any public office or employment, and be mulcted of one-third of his revenue till he has satisfied the aggrieved party; that any one giving or receiving a challenge shall forfeit all right of reparation and all his offices; that any one who kills his adversary in an unauthorized duel shall suffer death without burial, and his children shall be reduced to villanage; that seconds, if they take part in a duel, shall suffer death, if not, shall be degraded from the profession of arms. This edict has been pronounced by Henri Martin " the wisest decree of the ancient monarchy on a matter which involves so many delicate and profound questions of morals, politics, and religion touching civil rights " (Histoire de France, x. 466).
In the succeeding reign the mania for duels revived. Rostand's Cyrano is a life-like modern portraiture of French bloods in the first half of the 17th century. De Houssaye tells us that in Paris when friends met the first question was, " Who fought yesterday ? who is to fight to-day ? " They fought by night and day, by moonlight and by torch-light, in the public streets and squares. A hasty word, a misconceived gesture, a question about the colour of a riband or an embroidered letter, such were the commonest pretexts for a duel. The slighter and more frivolous the dispute, the less were they inclined to submit them to the king for adjudication. Often, like gladiators or prize-fighters, they fought for the pure love of fighting. A misunderstanding is cleared up on the ground. " N'importe," cry the principals, " puisque nous sommes ici, battons-nous." Seconds, as Montaigne tells us, are no longer witnesses, but must take part themselves unless they would be thought wanting in affection or courage; and he goes on to complain that men are no longer contented with a single second, " c'etait anciennement des duels, ce sont a cette heure rencontres et batailles." There is no more striking instance of Richelieu's firmness and power as a statesman than his conduct in the matter of duelling. In his Testament politique he has assigned his reasons for disapproving it as a statesman and ecclesiastic. But this disapproval was turned to active detestation by a private cause. His elder brother, the head of the house, had fallen in a duel stabbed to the heart by an enemy of the cardinal. Already four edicts had been published under Louis XIII. with little or no effect, when in 1626 there was published a new edict condemning to death any one who had killed his adversary in a duel, or had been found guilty of sending a challenge a second time. Banishment and partial confiscation of goods were awarded for lesser offences. But this edict differed from preceding ones not so much in its severity as in the fact that it was the first which was actually enforced. The cardinal began by imposing the penalties of banishment and fines, but, these proving ineffectual to stay the evil, he determined to make a terrible example. To quote his own words to the king, " Ii s'agit de couper la gorge aux duels ou aux edits de votre Majeste." The count de Boutteville, a renommist who had already been engaged in twenty-one affairs of honour, determined out of pure bravado to fight a twentysecond time. The duel took place at midday on the Place Royale. Boutteville was arrested with his second, the count de Chapelles; they were tried by the parlement of Paris, condemned and, in spite of all the influence of the powerful house of Montmorenci, of which de Boutteville was a branch, they were both beheaded on the 21st of June 1627. For a short time the ardour of duellists was cooled. But the lesson soon lost its effect. Only five years later we read in the Mercure de France that two gentlemen who had killed one another in a duel were, by the cardinal's orders, hanged on a gallows, stripped and with their heads downwards, in the sight of all the people. This was a move in the right direction, since, for fashionable vices, ridicule and ignominy is a more drastic remedy than death. It was on this principle that Caraccioli, prince of Melfi, when viceroy of Piedmont, finding that his officers were being decimated by duelling, proclaimed that all duels should be fought on the parapet of the Ponte Vecchio, and if one of the combatants chanced to fall into the river he should on no account be pulled out.
Under the long reign of Louis XIV. many celebrated duels took place, of which the most remarkable were that between the duke of Guise and Count Coligny, the last fought on the Place Royale, and that between the dukes of Beaufort and Nemours, each attended by four friends. Of the ten combatants, Nemours and two others were killed on the spot, and none escaped without some wound. No less than eleven edicts against duelling were issued under le Grand Monarque. That of 1643 established a supreme court of honour composed of the marshals of France; but the most famous was that of 1679, which confirmed the enactments of his predecessors, Henry IV. and Louis XII. At the same time a solemn agreement was entered into by the principal nobility that they would never engage in a duel on any pretence whatever.. A medal was struck to commemorate the occasion, and the firmness of the king, in refusing pardon to all offenders, contributed more to restrain this scourge of society than all the efforts of his predecessors.
The subsequent history of duelling in France may be more shortly treated. In the preamble to the edict of 1704 Louis XIV. records his satisfaction at seeing under his reign an almost entire cessation of those fatal combats which by the inveterate force of custom had so long prevailed. Addison (Spectator, 99) notes it as one of the most glorious exploits of his reign to have banished the false point of honour. Under the regency of Louis XV. there was a brief revival. The last legislative act for the suppression of duels was passed on the 12th of April 1723. Then came the Revolution, which in abolishing the ancien regime fondly trusted that with it would go the duel, one of the privileges and abuses of an aristocratic society. Dupleix, in his Military Law concerning the Duel (1611), premises that these have no application to lawyers, merchants, financiers or justices. This explains why in the legislation of the National Assembly there is no mention of duels. Camille Desmoulins when challenged shrugged his shoulders and replied to the charge of cowardice that he would prove his courage on other fields than the Bois de Boulogne. The two great Frenchmen whose writings preluded the French Revolution both set their faces against it. Voltaire had indeed, as a young man, in obedience to the dictates of society, once sought satisfaction from a nobleman for a brutal insult, and had reflected on his temerity in the solitude of the Bastille.' Henceforward he inveighed against the practice, ' Voltaire met the chevalier Rohan-Chabot at the house of the Marquis of Sully. The chevalier, offended by Voltaire's free speech, not only for its absurdity, but also for its aristocratic exclusiveness. Rousseau had said of duelling, " It is not an institution of honour, but a horrible and barbarous custom, which a courageous man despises and a good man abhors." Napoleon was a sworn foe to it. " Bon duelliste mauvais soldat " is one of his best known sayings; and, when the king of Sweden sent him a challenge, he replied that he would order a fencing-master to attend him as plenipotentiary. After the battle of Waterloo duels such as Lever loves to depict were frequent between disbanded French officers and those of the allies in occupation. The restoration of the Bourbons brought with it a fresh crop of duels. Since then duels have been frequent in France - more frequent, however, in novels than in real life - fought mainly between politicians and journalists, and with rare exceptions bloodless affairs. If fought with pistols, the distance and the weapons chosen render a hit improbable; and, if fought with rapiers, honour is generally satisfied with the first blood drawn. Among Frenchmen famous in politics or letters who have " gone out " may be mentioned Armand Carrel, who fell in an encounter with Emile Girardin; Thiers, who thus atoned for a youthful indiscretion; the elder Dumas; Lamartine; Ste Beuve, who to show at once his sangfroid and his sense of humour, fought under an umbrella; Ledru Rollin; Edmond About; Clement Thomas; Veuillot, the representative of the church militant; Rochefort; and Boulanger, the Bonapartist fanfaron, whose discomfiture in a duel with Floquet resulted in a notable loss of popular respect.
Duelling did not begin in England till some hundred years after it had arisen in France. There is no instance of a private duel fought in England before the 16th century, and they are rare before the reign of James I. A very fair notion of the comparative popularity of duelling, and of the feeling with which it was regarded at various periods, might be gathered by examining the part it plays in the novels and lighter literature of the times. The earliest duels we remember in fiction are that in the Monastery between Sir Piercie Shafton and Halbert Glendinning, and that in Kenilworth between Tressilian and Varney. (That in of Geierstein either is an anachronism or must reckon as a wager by battle.) Under James I. we have the encounter between Nigel and Lord Dalgarno. The greater evil of war, as we observed in French history, expels the lesser, and the literature of the Commonwealth is in this respect a blank. With the Restoration there came a reaction against Puritan morality, and a return to the gallantry and loose manners of French society, which is best represented by the theatre of the day. The drama of the Restoration abounds in duels. Passing on to the reign of Queen Anne, we find the subject frequently discussed in the Tatler and the Spectator, and Addison points in his happiest way the moral to a contemporary duel between Mr Thornhill and Sir Cholmeley Dering. " I come not," says Spinomont to King Pharamond, " I come not to implore your pardon, I come to relate my sorrow, a sorrow too great for human life to support. Know that this morning I have killed in a duel the man whom of all men living I love best." No reader of Esmond can forget Thackeray's description of the doubly fatal duel between the duke of Hamilton and Lord Mohun, which is historical, or the no less life-like though fictitious duel between Lord Mohun and Lord Castlewood. The duel between the two brothers in Stevenson's Master of Ballantrae is one of the best conceived in fiction. Throughout the reigns of the Georges they are frequent. Richardson expresses his opinion on the subject in six voluminous letters to the Literary Repositor. insolently asked the marquis, " Who is that young man?" " One," replied Voltaire, " who if he does not parade a great name, honours that he bears." The chevalier said nothing at the time, but, seizing his opportunity, inveigled Voltaire into his coach, and had him beaten by six of his footmen. Voltaire set to work to learn fencing, and then sought the chevalier in the theatre, and publicly challenged him. A bon-mot at the chevalier's expense was the only satisfaction that the philosopher could obtain. " Monsieur, si quelque affaire d'interet ne vous a point fait oublier l'outrage dont j'ai a me plaindre, j 'espere que vous m'en rendrez raison." The chevalier was said to employ his capital in petty usury.
Sheridan, like Farquhar in a previous generation, not only dramatized a duel, but fought two himself. Byron thus commemorates the bloodless duel between Tom Moore and Lord Jeffrey: " Can none remember that eventful day, That ever glorious almost fatal fray, When Little's leadless pistols met the eye, And Bow Street myrmidons stood laughing by?" There are no duels in Miss Austen's novels, but in those of Miss Edgeworth, her contemporary, there are three or four. As we approach the 19th century they become rarer in fiction. Thackeray's novels, indeed, abound in duels. His royal highness the late lamented commander-in-chief " had the greatest respect for Major Macmurdo, as a man who had conducted scores of affairs for his acquaintance with the greatest prudence and skill; and Rawdon Crawley's duelling pistols, " the same which I shot Captain Marker," have become a household word. Dickens, on the other hand, who depicts contemporary English life, and mostly in the middle classes, in all his numerous works has only three; and George Eliot never once refers to a duel. Tennyson, using a poet's privilege, laid the scene of a duel in the year of the Crimean War, but he echoes the spirit of the times when he stigmatizes " the Christless code that must have life for a blow." Browning, who delights in cases of conscience, has given admirably the double moral aspect of the duel in his two lyrics entitled " Before " and " After." To pass from fiction to fact we will select the most memorable English duels of the last century and a half. Lord Byron killed Mr Chaworth in 1765; Charles James Fox and Mr Adams fought in 1779; duke of York and Colonel Lennox, 1789; William Pitt and George Tierney, 1796; George Canning and Lord Castlereagh, 1809; Mr Christie killed John Scott, editor of the London Magazine, 1821; duke of Wellington and earl of Winchelsea, 1829; Mr Roebuck and Mr Black, editor of Morning Chronicle, 1835; Lord Alvanley and a son of Daniel O'Connell in the same year; Earl Cardigan wounded Captain Tuckett, was tried by his peers, and acquitted on a legal quibble, 1840.
The year 1808 is memorable in the annals of duelling in England. Major Campbell was sentenced to death and executed for killing Captain Boyd in a duel. In this case it is true that there was a suspicion of foul play; but in the case of Lieutenant Blundell, who was killed in a duel in 1813, though all had been conducted with perfect fairness, the surviving principal and the seconds were all convicted of murder and sentenced to death, and, although the royal pardon was obtained, they were all cashiered. The next important date is the year 1843, when public attention was painfully called to the subject by a duel in which Colonel Fawcett was shot by his brother-in-law, Lieutenant Monro. The survivor, whose career was thereby blasted, had, it was well known, gone out most reluctantly, in obedience to the then prevailing military code. A full account of the steps taken by the prince consort, and of the correspondence which passed between him and the duke of Wellington, will be found in the Life of the Prince by Sir Theodore Martin. The duke, unfortunately, was not an unprejudiced counsellor. Not only had he been out himself, but, in writing to Lord Londonderry on the occasion of the duel between the marquess and Ensign Battier in 1824, he had gone so far as to state that he considered the probability of the Hussars having to fight a duel or two a matter of no consequence. In the previous year there had been formed in London the association for the suppression of duelling. It included leading members of both houses of parliament and distinguished officers of both services. The first report, issued in 1844, gives a memorial of the association presented to Queen Victoria through Sir James Graham, and in a debate in the House of Commons (15th of March 1844) Sir H. Hardinge, the secretary of war, announced to the House that Her Majesty had expressed herself desirous of devising some expedient by which the barbarous practice of duelling should be as much as possible discouraged. In the same debate Mr Turner reckoned the number of duels fought during the reign of George III. at 172, of which 91 had been attended with fatal results; yet in only two of these cases Viii. 21 !n England. had the punishment of death been inflicted. But though the proposal of the prince consort to establish courts of honour met with no favour, yet it led to an important amendment of the articles of war (April 1844). The 98th article ordains that " every person who shall fight or promote a duel, or take any steps thereto, or who shall not do his best to prevent duel, shall, if an officer, be cashiered, or suffer such other penalty as a general court-martial may award." These articles, with a few verbal changes, were incorporated in the consolidated Army Act of 1879 (section 38), which is still in force.
In the German army duels are still authorized by the military code as a last resort in grave cases. A German officer who is involved in a difficulty with another is bound to notify the circumstance to a council of honour at the ?' latest as soon as he has either given or received a challenge. A council of honour consists of three officers of different ranks and is instructed, if possible, to bring about a reconciliation. If unsuccessful it must see that the conditions of the duel are not out of proportion to the gravity of the quarrel. Public opinion was greatly roused by a tragic duel fought by two officers of the reserve in 1896; and the German emperor in a cabinet order of 1897, confirmed in 1901, enforced the regulation of the, military court of honour, and gave warning that any infringement would be visited with the full penalties of the law. It is, notwithstanding, still the fact that a German officer who is not prepared to accept a challenge and fight, if the opinion of his regiment demands it, must leave the service. The German penal code (Reichsstrafgesetzbuch, pars. 101-110) only punishes a duel when it is fought with lethal weapons; and much controversy has raged round the question of the Mensuren or students' duels, which, as being conducted with sharpened rapiers, have, despite the precautions taken, in the way of bandaging the vital parts of the body which a cut would reach, to reduce the risk of a fatal issue to a minimum, been declared by the Supreme Court of the Empire to fall under the head of duels, and as such to be punishable.
The Mensuren (German students' duels) above referred to are frequently misunderstood. They bear little resemblance, save in form, to the duel a outrance, and should rather be considered in the light of athletic games, in which the overflow of high animal spirits in young Germany finds its outlet. These combats are indulged in principally by picked representatives of the " corps " (recognized clubs), and according to the position and value of the Schmisse (cuts which have landed) points are awarded to either side. Formerly these so-called duels could be openly indulged in at most universities without let or hindrance. Gradually, however, the academic authorities took cognizance of the illegality of the practice, and in many cases inflicted punishment for the offence. Nowadays, owing to the decision of the supreme court reserving to the common law tribunals the power to deal with such cases, the governing bodies at the universities have only a disciplinary control, which is exercised at the various seats of learning in various degrees: in some the practice is silently tolerated, or at most visited by reprimand; in others, again, by relegation or carcer - with the result that the students of one university frequently visit another, in order to be able to fight out their battles under less rigorous surveillance.
Any formal discussion of the morality of duelling is, in England at least, happily superfluous. No fashionable vice has been so unanimously condemned both by moralists and divines, and in tracing its history we are reminded of the words of Tacitus, " in civitate nostra et vetabitur semper et retinebitur." Some, however, of the problems, moral and social, which it suggests may be shortly noticed. That duelling flourished so long in England the law is, perhaps, as much to blame as society. It was doubtless from the fact that duels were at first a form of legal procedure that English law has refused to take cognizance of private duels. A duel in the eye of the law differs nothing from an ordinary murder. The greatest English legal authorities, from the time of Elizabeth downwards, such as Coke, Bacon and Hale, have all distinctly affirmed this interpretation of the law. But here as elsewhere the severity of the penalty defeated its own object. The public conscience revolted against a Draconian code which made no distinction between wilful murder and a deadly combat wherein each party consented to his own death or submitted to the risk of it. No jury could be found to convict when conviction involved in the same penalty a Fox or a Pitt and a Turpin or a Brownrigg. Such, however, was the conservatism of English publicists that Bentham was the first to point out clearly this defect of the law, and propose a remedy. In his Introduction to the Principles of Morals and Legislation, published in 1789, Bentham discusses the subject with his usual boldness and logical precision. In his exposition of the absurdity of duelling considered as a branch of penal justice, and its inefficiency as a punishment, he only restates in a clearer form the arguments of Paley. So far there is nothing novel in his treatment of the subject. But he soon parts company with the Christian moralist, and proceeds to show that duelling does, however rudely and imperfectly, correct and repress a real social evil. " It entirely effaces a blot which an insult imprints upon the honour. Vulgar moralists, by condemning public opinion upon this point, only confirm the fact." He then points out the true remedy for the evil. It is to extend the same legal protection to offences against honour as to offences against the person. The legal satisfactions which he suggests are some of them extremely grotesque. Thus for an insult to a woman, the man is to be dressed in a woman's clothes, and the retort to be inflicted by the hand of a woman. But the principle indicated is a sound one, that in offences against honour the punishment must be analogous to the injury. Doubtless, if Bentham were now alive, he would allow that the necessity for such a scheme of legislation had in a great measure passed away. That duels have since become extinct is no doubt principally owing to social changes, but it may be in part ascribed to improvements in legal remedies in the sense which Bentham indicated. A notable instance is Lord Campbell's Act of 1843, by which, in the case of a newspaper libel, a public apology coupled with a pecuniary payment is allowed to bar a plea. In the Indian Code there are special enactments concerning duelling, which is punishable not as murder but as homicide.
Suggestions have from time to time been made for the establishment of courts of honour, but the need of such tribunals is doubtful, while the objections to them are obvious. The present tendency of political philosophy is to contract rather than extend the province of law, and any interference with social life is justly resented. Real offences against reputation are sufficiently punished, and the rule of the lawyers, that mere scurrility or opprobrious words, which neither of themselves import nor are attended with any hurtful effects, are not punishable, seem on the whole a wise one. What in a higher rank is looked upon as a gross insult may in a lower rank be regarded as a mere pleasantry or a harmless joke. Among the lower orders offences against honour can hardly be said to exist; the learned professions have each its own tribunal to which its members are amenable; and the highest ranks of society, however imperfect their standard of morality may be, are perfectly competent to enforce that standard by means of social penalties without resorting either to trial by law or trial by battle.
The duel, which in a barbarous age may be excused as " a sort of wild justice," was condemned by Bacon as " a direct affront of law and tending to the dissolution of magistracy." It survived in more civilized times as a class distinction and as an ultimate court of appeal to punish violations of the social code. In a democratic age and under a settled government it is doomed to extinction. The military duels of the European continent, and the so-called American duel, where the lot decides which of the two parties shall end his life, are singular survivals. For real offences against reputation law will provide a sufficient remedy. The learned professions will have each its own tribunal to which its members are amenable. Social stigma is at once a surer and a juster defence against conduct unworthy of a gentleman. Yet.
the duel dies hard, and even to-day it is approved or palliated by some notable publicists and professors in France and Germany. M. H. Marion (La Grande Encyclopedic), in an article strongly condemnatory of duels, still holds that the wrongdoer is bound to accept a challenge, though he may not take the offensive, and further allows that obligatory duels may be the only way of evoking a sense of honour and of maintaining discipline in the army. Dr Paulsen goes much further, and not only defends the duels of university students (Mensuren) as an encouragement of physical exercise, a proof of courage and a protest of worth against wealth, but maintains generally that the duel should be retained as an expedient in those exceptional cases when a man cannot bring himself to drag before a law court the outrage done to his personal honour. But in such cases Dr Paulsen would have the courts hold the injured person scathless, whether he be challenger or challenged, and visit the aggressor with condign punishment.
BIBLIOGRAPHY. - Castillo, Tractatus de duello (Turin, 1525); J. P. Pigna, Il Duello (1554); Muzio Girolamo, Traite du duel (Venice, 1 553); Boyssat, Recherches sur les duels (Lyons, 1610); J. Savaron, Traite contre les duels (Paris, 1610); Brantome, Memoire sur les duels rodomontades; F. Bacon, Charge concerning Duels, &c. (1614); d'Audiguier, Le Vray et ancien usage des duels (Paris, 1617); His Majesties Edict and severe Censure against private combats (London, 1618); Cockburn, History of Duels (London, 1720); Brillat Savarin, Essai sur le duel (1819); Chateauvillard, Essai sur le duel (1836); Colombey, Histoire anecdotique du duel (Paris); Fourgeroux de Champigneules, Histoire des duels anciens et modernes (2 vols., Paris, 1835-1837); Millingen, History of Duelling (London, 1841); L. Sabine, Notes on Duels (Boston, 1855); Steinmetz, Romance of Duelling (London, 1868). See also Eugene Cauchy, Du duel, &c. (1846), a learned and philosophic treatise by a French lawyer; G. LetainturierFradin, Le Duel a travers les ages (Paris, 1892); Mackay, History of Popular Delusions, Duels and Ordeals; and for a valuable list of authorities, Buckle, History of Civilization in England, ii. 137, note 71. For judicial combats see Gibbon, Decline and Fall, ch. xxxviii. For courts of honour see Armed Strength of the German Empire (1876). For Mensur, see Paulsen, The German Universities (1906), ch. vi. (F. S.)