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 In Germany.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 à 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.” Modern views.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, seems 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
