prayers and perjury becomes an offence against the Deity. 3 4 In most European countries the judicial duel survived the close of the Middle Ages, but disappeared shortly afterwards.1 Various circumstances contributed to its decline and final disappearance. From an early period Councils and popes had declared against it, 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. 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; 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. Buckle justly observes that, "as the trial by battle became disused, the people, clinging to their old customs, became more addicted to duelling "; hence the judicial duel may be regarded as the direct parent of the modern duel. 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 1 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.). 2 Du Boys, Histoire du droit criminel des peuples modernes, ii. 182. Lea, op. cit. p. 206 sqq. 3 Robertson, History of the Reign of the Emperor Charles V. i. 357 sq. "Notitia gurpitionis,' in Bouquet, 6 Recueil des historiens des Gaules et de la France, ix. 729. Lea, op. cit. pp. 200-205, 211 sq. Unger, loc. cit. p. 392 sqq. 5 Storr, 'Duel,' in Encyclopædia Britannica, vii. 512. 6 Buckle, Miscellaneous and Posthumous Works, i. 386. Cf. Bosquett, Treatise on Duelling, p. 79. 7 Storr, loc. cit. p. 511. 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.1 In England, Cromwell's Parliament made a determined effort to check the practice. A Scotch law of 1600 rendered the bare act of engaging in a duel, without license from the king, a capital offence. About the same period the Spanish Cortes passed a law which subjected all parties to a duel to the penalties of treason.* In 1602, Henry IV. of France issued an edict condemning to death whoever should give or accept a challenge or act as second; 5 and already several edicts against duelling had been promulgated under Louis XIII. 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. 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. 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."9 In spite of laws which directly prohibit duelling, or which punish with great severity anyone who kills another in a duel, sometimes even sub 1 Canons and Decrees of the Council of Trent, Session xxv. 19, p. 274 sq. 2 Pike, History of Crime in England, ii. 192. 3 Hume, Commentaries on the Law of Scotland, ii. 281. Erskine, Principles of the Law of Scotland, p. 560. Truman, Field of Honor, p. 70. 5 Isambert, Taillandier, and Decrusy, Recueil général des anciennes lois françaises, xv. 351 sq. 6 Ibid. xvi. 21, 106, 146. jecting him to punishment for murder,' 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. 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,2 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. 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. 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. 1 Günther, Die Idee der Wiedervergeltung, iii. 225, n. 467. Stephen, History of the Criminal Law of Eng land, iii. 99 sqq. Gelli, Il duello, p. 21. 2 Cf. Bentham, Theory of Legisla tion, p. 299 sqq. Lord But, as a matter of fact, the 3 That the modern duel is a special development of Chivalry has been pointed out by Buckle (History of Civilization in England, ii. 136 sq.). 4 Kames, Sketches of the History of Man, i. 415 n. 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"; 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." 2 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. 1 Moore, Full Inquiry into the Subject of Suicide, ii. 276. 2 Quoted by Millingen, History of Duelling, i. 300. CHAPTER XXII BODILY INJURIES CLOSELY related to the right to life is the right to bodily integrity. Indeed, homicide is, generally speaking, the highest form of bodily injury which can, in the nature of things, be inflicted, although there are some forms of ill-treatment which are more terrible than death itself.1 In the case of bodily injuries the magnitude of the offence is, other things being equal, proportionate to the harm inflicted. At the lower stages of civilisation we meet with the principle of an eye for an eye and a tooth for a tooth, or the offender has to pay an adequate compensation for the injury. It is said in the Laws of Manu that, if a blow is struck against men in order to give them pain, the judge shall inflict a fine in proportion to the amount of pain caused. According to Muhammedan law, retaliation for intentional wounds and mutilations is allowed, but a fine may be accepted instead. The fine for depriving a man of any of his five senses, or dangerously wounding him, or grievously disfiguring him for life, or cutting off a member that is single, as the 1 Cf. Stephen, History of the Criminal Law of England, iii. 11. 2 Post, Afrikanische Jurisprudenz, ii. 61 sqq. Munzinger, Östafrikanische Studien, pp. 208 (Takue), 502 (Barea and Kunáma). Burton, Two Trips to Gorilla Land, i. 105 (Mpongwe). Maclean, Compendium of Kafir Laws and Customs, p. 61 sq. Macpherson, Memorials of Service in India, p. 82 (Kandhs). Earl, Papuans, p. 83 (Papuans of Dory). Kubary, Die socialen Einrichtungen der Pelauer, p. 74 (Pelew Islanders). Petroff, 'Report on Alaska,' in Tenth Census of the United States, p. 105 (Thlinkets). 3 Laws of Manu, viii. 286. |