THE NEW SCHAFF-HERZOG
battle; to the dukes of Austria was granted (1156) and confirmed (1245) the right of representation in the judicial duel; trials for crimes were often settled by the arbitrament of the sword, even the judges who pronounced decision being subject to challenge from the party against whom the case was decided, unless the guilt was clear, a forcible reversion of justice being thus accomplished. As in the case of other ordeals, the wager of battle was employed by the Church. A notable instance of this is the dispute between Hildebrand and the church in Castile, when the pope attempted to replace the Mozarabic liturgy by the Roman; a double ordeal is asserted for this occasion, the combat and the ordeal of fire, and the Spaniards were victorious. It became common even for high ecclesiastics to trust their cause to the lists.
But while civil and ecclesiastical powers so largely had recourse to this means, a more advanced senti-
ment attempted to curb the combat and eventually |
to abolish it. Not the least incitement to these efforts was the abuse which arose from the employment of champions. This employment arose in the attempt to make more equal the chances of contestants, to prevent the powerful from overriding the weak. Substitutes were permitted
3. Progress for the aged, the infirm, minors, criptoward its ples, women, ecclesiastical institutions, Abolish- and ecclesiastics after they had been ment. debarred. Gradually this office became a profession, in many cases adopt-
ed by desperadoes who assumed no greater risks in the combat than they were wont to undergo in their ordinary life. Agobard (q.v.) opposed the judicial combat in his Liber adversus legem Gundobardi and Liber contra judicium Det; Atto of Vercelli (see Atto, 3) declared it inapplicable to the clergy and indecisive for laymen; in 1080 a synod at Lillebonne required the sanction of a bishop to be given a churchman who would engage; Ivo of Chartres (q.v.; d. 1116) rebuked a bishop for ordering the combat in his court; Pope Innocent II. forbade clerics to enter the lists (1140); Clement III. repeated the prohibition; Celestin III. (1191-98) deposed a priest for the offense, and Innocent III. (1215) confirmed this position; Innocent IV. interfered in 1245 to save the chapter of Notre Dame from being forced to engage. The judicial combat was first formally forbidden in Iceland in 1011, in Denmark in 1074. Restrictions and final abolishment may be traced as follows: by Henry IV. at Pisa, 1081; by Bishop Godfrey at Amiens, 1105; by Baldwin VII. at Ypres, 1116; by Centulla I. at Lourdes, 1138; by Philip Augustus at Tournay, 1187; by Alphonse de Poitiers at Riom, 1270; by Charles IV. at Worms, 1335; while the Council of Trent (session XXV., De reform., xix.) prohibited all potentates from allowing it. In spite of this gathering denunciation and prohibition, how persistent the practise was may be seen from the fact that in 1518 Henry II. of Navarre ordered recourse to it, at Pau; in 1538 Francis I. granted the appeal to arms and the default of the defendant resulted in his being sentenced to death; in Béarn it remained in the code till 1789; Julius had, in 1505, to forbid trial by battle in Italy; in Russia it was not abrogated till 1649;
in 1567 Bothwell offered to justify by the combat his murder of Darnley (J. Knox, Hist. of Reformation in Scotland, ed. Laing, ii. 560, Edinburgh, 1895). In Germany throughout the Middle Ages the matter was complicated by questions of birth and standing, though in case of homicide the combat was obligatory; a Jew might not decline the challenge of a Christian, though it is not clear that he might offer the challenge. ,Among the bills considered by the English Government when restricting the powers of the province of Massachusetts Bay was one which in 1774 contained a clause that took away the ‘appeal of death,” and this article had to be eliminated before final passage was granted, since it was regarded as a step toward denying the same privilege to Englishmen. This right was not abolished in England till 1819. Gro. W. GILMORE. Il. The Duel: A duel which took place in Germany in 1896 between two men of rank (Von Kotze and Von Schrader) called out a number of investigations and a large interest in the origin and development of the duel, 1. History. and also strenuous opposition to the institution as well as defense of it. Von Biilow attempted to show that its origin was not Germanic, but Spanish and French, that it was derived neither from the wager of battle nor from the tournament. If, however, the duel be defined as a combat between two persons in defense of the honor due their position, in which is involved definite disregard of public justice, then it is difficult to show that it isun-Germanic. While it can not go back to the wager of battle as its direct source, yet in the general disposition to assume the power to right a wrong, to take vengeance, or even to show one’s prowess on the foe, even a sort of noble courage in the case of a wrong—in all this the wager of battle of the Middle Ages was the predecessor of the duel. The wager of battle, however, embraced all classes and was not hemmed in by an exclusiveness which characterizes the duel. The disappearance of the former proved the occasion of the latter, but the motives were entirely different; in the wager of battle men sought their rights, while defense of the honor of position is the essence of the duel. The latter institution began to be common about 1500, especially in Spain, Italy, and France, whence it spread elsewhere, and the Romance languages became the vehicle in the sixteenth century of a literature on the duel. In the same century, also, the monarchs began to issue edicts against this practise, which were continued in the two following centuries. But a complete end of the practise was not brought about by these means. In Great Britain a duel between two officers in 1848 caused the authorities to incorporate strong regulations against the practise with trial as for murder in case of fatal issue of the combat. An organization against dueling was formed which included in its membership a large number of the nobility, and of high offic.rs in the army and navy, and in that country the duel has become practically extinct as a barbarous custom. In Germany since the time of Frederick the Great attempts have been made to supersede the duel by a court of honor. William I. on May 2, 1874, and William II. on Jan. 1, 1897, issued regulations to this end, the court of
honor being invoked first to avert the combat and then, if that is not reached, to have the conditions under observation of one of the court. Anti-dueling associations have been formed looking to the entire abolition of the custom.
The Roman Catholic Church has taken strong position against the duel (Council of Trent, sess. XXYV., chap. xix.); Benedict XIV. refused churchly burial to those even who showed signs of repentance outside the meeting-place, and the ban falls upon
the attending physician; even stu- 2. Attitude dents’ duels are included under the of the censure. The Evangelical church has
Churches; never through its organs approved the
Difficulties. duel. During the Reformation period the duel was not so much in evidence as to evoke a pronouncement from Luther. Among the Reformed the matter of Christian burial was not brought to a test, and the care of the surviving duelist came within the reach of the cure of souls. It is strange that while much was said in the Protestant churches of suicide, so little was said of the duel. But the event of 1896, already referred to, evoked some strong expressions of condemnation as traversing human law and the divine order. The difficulties were the greater in that men of serious lives defended the duel as a means of righting wrongs and defending assaults on honor. For the duel is a serious meeting with weapons. The seriousness rests not upon the character of the weapons, however, but in the hostility of the meeting. The jurists discriminate between two species of duel, that in defense of honor and that the purpose of which is punishment. In the first case a man of honor feels that his honor has been assailed, and challenges the assailant in order to wipe out the offense; in turn the challenged is in the position where he must defend his own honor, which would be lost by refusal to accept the challenge. The event is one which in its issue is entirely sundered from the ethical qualities of the participants. In the second species of duel the purpose of the challenger is to punish the challenged for some unbearable breach which may not be passed over; he is placed in the position of a man whose honor might be impugned if he did not adopt this means. Yet the means is inconclusive in its result; there is no guaranty that the guilty will receive the punishment, while the challenger assumes the position of judge and avenger; yet according to the code both the challenger and the challenged from the very process itself are recognized as protecting their honor. This last is the sole sense and significance of the practise. Thus far the two species of duels are identical; the thing at issue is the honor of the participants, which is reckoned with reference to standing in a certain circle and so with reference to ability to give “ satisfaction.”
A conclusive decision concerning the duel takes into account the value of that derived from position
which underlies the entire existence of
3. Ethics of the duel. The sixth commandment is the Duel. not final, for self-defense, war, capital punishment, and exposure to danger
are constant; nor is the monopoly claimed for public justice decisive, since the demand for one’s rights ever seeks and finds new forms not comprehended