Duel

(Duellum, old form of bellum).

This word, as used both in the ecclesiastical and civil criminal codes today, generally signifies every contest with deadly weapons which takes place by agreement between two persons on account of some private quarrel. Thus a contest with weapons is essential to the conception of a duel. Further, the contest must take place by agreement, and the weapons used must be capable of inflicting deadly wounds. Although generally demanded by custom, similarity of weapons is not essential; neither are witnesses, seconds, etc. Finally it is essential to a duel that it take place on account of some private matter, such as wounded honour. Consequently the customary duel of today differs from those public duels which took place for some public reason by the arrangement of the authorities, as the conflict between David and Goliath. Between contending nations there is no higher court than the appeal to arms; therefore war must decide, and there may be instances in which it is allowable to substitute for a battle between two armies a contest between two persons selected for the purpose.

HISTORY

Duelling was unknown to the civilized nations of antiquity. The contests of the Roman gladiators were not, like the duels of today, a means of self-defence, but bloody spectacles to satisfy the curiosity and cruelty of an effeminate and degenerate people. On the other hand the custom of duelling existed among the Gauls and Germans from the earliest era, as Diodorus Siculus (Biblioth. history Lib. V, ch. xxviii), Velleius Paterculus (Histor. rom., II, cxviii) and others relate. The duel is, therefore, undoubtedly of heathen origin, and was so firmly rooted in the customs of the Gauls and Germans that it persisted among them even after their conversion. The oldest known law of Christian times that permitted the judicial duel is that of the Burgundian King Gundobald (d. 516). With few exceptions the judicial duel is mentioned in all old German laws as a legal ordeal. It rested on a twofold conviction. It was believed, first, that God could not allow the innocent to be defeated in a duel; hence it was held that the guilty party would not dare primarily to appeal to the judgment of God in proof of his innocence and then enter upon the fight under the weight of perjury; the fear of Divine wrath would discourage him and make victory impossible.

The Church soon raised her voice against duelling. St. Avitus (d. 518) made an earnest protest against the law of the above-mentioned Gundobald, as is related by Agobard (d. 840), who in a special work on the subject points out the opposition between the law of Gundobald and the clemency of the Gospel; God might very easily permit the defeat of the innocent. The popes also at an early date took a stand against duelling. In a letter to Charles the Bald, Nicolas I (858-67) condemned the duel (monomachia) as a tempting of God. In the same century his example was followed by Stephen VI, later by Alexander II and Alexander III, Celestine III, Innocent III and Innocent IV, Julius II, and many others. In addition to the judicial, non-judicial combats also occurred, in which men arbitrarily settled private grudges or sought to revenge themselves. The tournaments, especially, were often used to satisfy revenge; on account of this misuse the Church early issued ordinances against the excesses committed at tournaments, although these were not always obeyed. The more the judicial combat fell into disuse, the more the old instinct of the Germanic and Gallic peoples, by which each man sought to gain his rights with weapon in hand, showed itself in personal contests and at tournaments. From the middle of the fifteenth century duelling over questions of honour increased so greatly, especially in the Romanic countries, that the Council of Trent was obliged to enact the severest penalties against it. It decreed that "the detestable custom of duelling which the Devil had originated, in order to bring about at the same time the ruin of the soul and the violent death of the body, shall be entirely uprooted from Christian soil" (Sess XXIV, De reform, c. xix). It pronounced the severest ecclesiastical penalties against those princes who should permit duelling between Christians in their territories. According to the council those who take part in a duel are ipso facto excommunicated, and if they are killed in the duel they are to be deprived of Christian burial. The seconds and all those who advised the duel or were present at it are also excommunicated. These ecclesiastical penalties were at a later date repeatedly renewed and even in parts made more severe. Benedict XIV decreed that duellists should also be denied burial by the Church even if they did not die on the duelling ground and had received absolution before death. All these penalties are substantially in force today. Pius IX in the "Constitutio Apostolicae Sedis" of 12 October, 1869, decreed the penalty of excommunication against "all who fight duels, or challenge to a duel or accept such challenge; as well as against all who are accessory to the or who in any way abet or encourage the same; and finally against those who are present at a duel as spectators [de industria spectantes], or those who permit the same, or do not prevent it, whatever their rank, even if they were kings or emperors".

Like the Church, the State also took steps against the evil of duelling. In 1608 an edict against the practice was issued by Henry IV of France. Whoever killed his opponent in a duel was to be punished with death; severe penalties were also enacted against the sending of a challenge and the acceptance of the same. Unfortunately transgressors against this law were generally pardoned. In 1626, during the reign of Henry's successor, Louis XIII, the laws against duelling were made more stringent and were strictly carried out. Notwithstanding these measures the custom of duelling increased alarmingly in France. The great number of French noblemen who fell in duels about the middle of the seventeenth century, is shown by the statement of the contemporary writer Theophile Raynaud that within thirty years more men of rank had been killed in duels than would have been needed to make up an entire army. Olier, the founder of the Congregation of Saint-Sulpice, with the aid of St. Vincent de Paul, formed an association of distinguished noblemen, the members of which signed the following obligation: "The undersigned publicly and solemnly make known by this declaration that they will refuse every form of challenge, will for no cause whatever enter upon a duel, and will in every way be willing to give proof that they detest duelling as contrary to reason, the public good, and the laws of the State, and as incompatible with salvation and the Christian religion, without, however, relinquishing the right to avenge in every legal way any insult offered them as far as position and birth make such action obligatory." Louis XIV aided these efforts at reform by the severe enactment against duelling which he issued early in his reign. For a long time after this duelling was infrequent in France.

In other countries too severe measures were taken against the constantly spreading evil. In 1681 the Emperor Leopold I forbade the fighting of duels under the severest penalties; Maria Theresa ordered not only the challenger and the challenged but also all who had any share in a duel to be beheaded, and in the reign of the Emperor Joseph II duellists received the punishment of murderers. Frederick the Great of Prussia tolerated no duellists in his army. The present penal code of Austria makes imprisonment the punishment of duelling; the penal code of the German Empire commands confinement in a fortress. The penalty is, without doubt, entirely insufficient and constitutes a form of privilege for the person who kills his adversary in a duel. Theoretically these penal laws are also applicable to the respective armies, but unfortunately in the case of officers they are not carried out; indeed, up to the present time, an officer who refuses to fight a duel in Germany and Austria is in danger of being dismissed from the army. In 1896 when, in consequence of the fatal issue of a duel, the Reichstag by a large majority called upon the Government to proceed by all the means in its power against the practice of duelling, as opposed to the criminal codes the emperor issued a cabinet order on 1 January, 1897, which established courts of honour to deal with disputes in the army concerning questions of honour. Unfortunately the decree leaves it open to the court of honour to permit or even to command a duel to take place. Furthermore, on 15 January, 1906, General von Einem, Prussian Minister of War, stated that the principle of the duel was still in force, and Chancellor von Bulow added to this:

In the army, as a result of this principle, a conscentious opponent of duelling is constantly exposed to the danger of being expelled for refusing to fight. In England duelling is almost unknown, and no duel has occurred, it is said, in the British army for the last eighty years. English jurisprudence contains no special ordinances against duelling, the wounding or killing of another in a duel is punishable according to common law. On the Continent also public opinion on the subject of duelling seems to be gradually changing. The demand for the abolition, even in the army, of this abuse is growing louder and louder. Some years ago, at the instance of the Infante Alfonso of Bourbon and Austria-Este, an anti-duelling league was formed in order to carry on systamatically the opposition to duelling. A preliminary convention, held at Frankfort-on-the Main in the spring of 1901, issued an appeal for support in its struggle against this evil. In a few weeks a thousand signatures were received, mostly those of men of influence from the most varied ranks of society. A convention to draw up a constitution met at Cassel 11 January, 1902, and Prince Carl zu Lowenstein was elected president. A committee was also appointed to direct affairs and to conduct the agitation. The league has made most satisfactory progress; in 1908 it established a permanent bureau at Leipzig. Concerning the aims of the league the declaration subscribed by the members states the following:

WRONGFULNESS OF DUELLING

After what has been said above there can be no doubt that duelling is contrary to the ordinances of the Catholic Church and of most civilized countries. By the wording of its ordinance against duelling, the Council of Trent plainly indicated that duelling was essentially wrong and since then theologians have almost universally charactorized it as a sinful and reprehensible course of action. However there were always a few scholars who held the opinion that cases might arise in which the unlawfulness of duelling could not be proved with certainty by mere reason. But this opinion has not been tenable since Pope Benedict XIV in the Bull "Detestabilem" of the year 1752 condemned the following propositions:

• "A soldier would be blameless and not liable to punishment for sending or accepting a challenge if he would be considered timid and cowardly, worthy of contempt, and unfit for military duty, were he not to send a challenge or accept such, and who would for this reason lose the position which supported him and his family, or who would be obliged to give up forever the hope of befitting and well-earned advancement."

• "Those persons are excusable who to defend their honour or to escape the contempt of men accept or send a challenge when they know positively that the duel will not take place but will be prevented by others."

• "A general or officer who accepts a challenge through fear of the loss of his reputation and his position does not come under the ecclesiastical punishment decreed by the Church for duellists."

• "It is permissible under the natural conditions of man to accept or send a challenge in order to save one's fortune, when the loss of it can not be prevented by any other means."

• "This permission claimed for natural conditions can also be applied to a badly guided state in which especially, justice is openly denied by the remissness or malevolence of the authorities."

Like his predecessors, Leo XIII in his letter "Pastoralis officii", of 12 September, 1891, to the German and Austro-Hungarian bishops, laid down the following principles: "From two points of view the Divine law forbids a man as a private person to wound or kill another, excepting when he is forced to it by self-defence. Both natural reason and the inspired Holy Scriptures proclaim this Divine law." The intrinsic reason why duelling is in itself sinful and reprehensible is that it is an arbitrary attack on God's right of ownership as regards human life. Only the owner and master of a thing has the right at pleasure to destroy it or expose it to the danger of destruction. But man is not the owner and master of his life; it belongs, instead, entirely to his Creator. Now man can only call that his property and treat it as such which is intended in the first instance for his benefit, so that he has the right to exclude others from the use of the same. Man, however, is not created primarily for himself but for the glory and service of God. Here below he is to serve his Creator and Lord as long as the Lord wills and thus attain his own salvation. For this end God has given man life, maintains it for him, and has bestowed on him the instinct of self-preservation. But if man is not the master of his life, he has not the right to expose it at pleasure to destruction or even deliberately to seek such danger. In order rightfully to expose the life to danger there must be a justifiable reason, and even then the risking of life is only permissible, not the end to be sought in itself. What is said of one's own life applies also to the life of one's fellow-man. Every man has the right in case of necessity forcibly to defend himself against an unlawful attack on his life, even if it cost the life of the assailant; this is a requirement of public safety; but apart from such defence no man has the right as a private individual to injure the life of his fellow-man or at pleasure to expose his own to similar danger. Hence it is easy to perceive that a duellist unjustifiably exposes both his own life and that of his fellow-man consequently is guilty of a wrongful assumption of the right of God, the Lord of life and death. To make this clear it is only necessary to examine the pretexts used to palliate duelling, or, what is the same, to look into the aims to sought to be attained by this custom. One of the principal reasons given in justification of duelling is the obtaining of satisfaction. A man is insulted or injured in reputation, and in order to obtain satisfaction challenges the defamer. But besides the offence against civil law in seeking to establish one's rights with weapons, thus evading the authority of the State, a duel is totally unsuited to the attainment of satisfaction and in addition is wrongful. Satisfaction consists in the offender withdrawing his insult and treating the offended person with respect and honour. This end cannot, however, be attained by duelling. When the one who has given the provocation accepts the challenge he does not thereby withdraw the insult; he intends, rather, to maintain it by weapons and greater wrongdoing to the first, inasmuch as he may severely wound or even kill the challenger. Moreover, who would allow to the man whom he wishes to compel to make good a wrong the same chance of victory as to himself, i.e. who should give the offender the opportunity to add to the wrong he has already done an even more heinous injury? Yet this is what the challenger does in granting his adversary the same weapons and the same chance for success as he claims for himself.

Another reason offered in justification of duelling is self-defence. The duellist desires to avoid the loss of the respect of his peers and thus to retain his office and his income, or, as is said, to defend his honour and his social position. It is unfortunately only too true that to-day the conscientious opponent of duelling, especially in the army, must often suffer great losses. Nevertheless duelling cannot be justified as self-defence. Honour and respect of others cannot be preserved by the use of arms, nor in a duel is there any actual vindication of these. The duel implies that the honour of the challenger has already been injured, and consequently that this injury is an accomplished fact; besides, the duel takes place according to agreement, so that it is not a case of self-defence against sudden attack. But the word self-defence is used in a broader sense. According to the prejudices existing in certain circles, the person who does not answer an insult by a challenge or who declines a challenge is held to be dishonourable and cowardly; thus it may be that a man's entire social position is at stake. Yet, from its very nature, a duel is an unsuitable and illicit method of preserving or rehabilitating honour. Look at a duel first from the point of view of the person injured. He must it is said, send a challenge because he has been insulted. Two cases, however, are here possible. Either his moral character and good name have been attacked, or the specific charge of cowardice has been made against him. If the former be the case, the duel is manifestly unsuited to defend the injured man's honour. A duel can never prove that the person attacked is a person of honour or a simpleton, has not committed adultery, or the like. A man without character or morals can be just as skilful in handling weapons as his honourable opponent. If the quarrel hinges on the charge of cowardice, a duel is apparently a proper means of disproving the same. But in this instance the challenger directly endangers his life in order to prove that he is no coward. Consequently he cannot say that he only suffers his life to be endangered, he deliberately seeks this danger in order to show his courage. And, according to our former statements, this is to dispose of one's life unlawfully. It cannot be said in reply that the injured person merely intends the rehabilitation of his honour. That is certainly the final aim of the duel, but the first and direct aim is to prove one's courage by fighting the duel. Is it permissible, however, to risk one's own life and that of one's fellow-man merely as a means of proving one's courage? If this be correct, it would be equally allowable to enter a lion's cage, sword in hand, if public opinion demanded such proof of personal bravery. Hence it follows that the duel is not in reality a proper means to demonstrate one's courage, for true courage, for true is a moral virtue which is not blind and foolhardy but exposes itself to danger only if reason demand it. What has been said of the injured party is applicable also to the party giving the provocation, the one who is challenged. If he has acted unjustly he should as a man of honour offer reparation; that is his duty, and the refusal to perform this duty plainly gives him no right to fight a duel with his opponent. If he is not in the wrong he ought to refuse the challenge. The only ground for which a challenge might be accepted could be fear of the accusation of cowardice; that this reason is, however, not tenable has already been shown. It surely is the basest cowardice to do, through fear of being accused of want of courage, what sober reflection would lead any man of sense to condemn as immoral and wrong.

The conclusion necessarily to be drawn from the above is: whoever is killed in a duel is indirectly guilty of self-murder, because he has for no justifiable reason risked his life, and whoever slays his adversary in a duel is guilty of unjustifiable homicide, because he has taken the risk of causing death without any right to do so; this holds true even though he did not directly intend his opponent's death. The above applies not only to duels undertaken by private individuals of their own free will, but also to duels fought on account of personal grievances by order of State authorities. Those in authority have not the right to dispose at their pleasure of the life of the subject. Should a dispute be laid before them, they should examine the matter judicially and punish the guilty party. If the guilt cannot be proved the accused should be acquitted; in such a case the authorities have no right to command a duel and thus expose the innocent to the same peril as the guilty. This has all the more force as duels often take place on account of wrongs which are not today punished with death by civil law.

V. CATHREIN