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 The judicial combat.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 Débonnaire:—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 François de Vivonne de la Châtaignerie 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 Châtaignerie, 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 gentis fata Edmundo Anglorum et Canuto Danorum regibus commissa fuerunt, qui singulari 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 by the 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. The duel of honour.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 In France.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 Français 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 |
Duels were not common before the 16th century. Hallam
