Cyclopædia of Political Science, Political Economy, and the Political History of the United States

Edited by: Lalor, John J.
(?-1899)
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First Pub. Date
1881
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New York: Maynard, Merrill, and Co.
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1899
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Includes articles by Frédéric Bastiat, Gustave de Molinari, Henry George, J. B. Say, Francis A. Walker, and more.
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DUELING

I.390.1

DUELING. John de Liniano defines dueling: "a combat between two men, agreed upon on both sides, to avenge an injury, for honor's sake, or to gratify one's hate;" and Bonacina: "a single combat, agreed upon between two parties of their own accord, and on certain conditions, with chances of death or of serious or slight wounds."

I.390.2

—According to Denizart, a duel is a combat between two or more individuals, for reasons of a personal nature, at a place indicated in a challenge. According to Cauchy, a duel is a private war preceded by a challenge, by which each of the belligerent parties is warned to be on his guard and to resist force by force. John Reynaud describes a duel as a combat agreed upon in advance between two individuals, who, by this fact, place themselves without the pale of all social laws. Dupin is more severe, and his definition strongly resembles a judgment without appeal. According to him, "dueling is the savage state; it is not the right but the argument of the stronger and more adroit, and sometimes of the more insolent."

I.390.3

—Of the origin of ducling little is known, and we shall not trace it back to Cain, who, according to some, was but a fortunate duelist. We find the first traces of it in Germany, whose inhabitants, says Montesquieu, "made war upon one another for murder, theft and injury. This custom was modified by subjecting these wars to rules. They were engaged in by order of the magistrate; this was preferable to a general license to fight." Gondebaud, king of the Burgundians, was the first to introduce into the code the judicial duel. A law called the Gombette law, promulgated in 501, regulated it. Charlemagne imitated this example, and this barbarous legislation can scarcely be said to have been seriously altered until during the reign of Philip the Fair in 1296. Duels properly so called, that is, duels to which any of the definitions given above may be applied, date from the period when tournaments and the judicial duel ceased. The discourse of Brantome on duels furnishes us some curious information as to the rules which duelists recognized in the sixteenth century. The combatants, if they followed the advice of the malicious chronicler, should take good care not to fight without witnesses, first, in order not to deprive the public of a fine spectacle, and then, not to expose themselves to be prosecuted as murderers. "It is not necessary, in these matters, to speak of courtesy," says the author of Dames Galantes. "The man who enters the lists should propose to himself to conquer or die, and above all, never to surrender; for the vanquisher disposes of the vanquished as he pleases. He may drag him over the field, hang him, burn him, hold him as a prisoner, or dispose of him as a slave. A soldier may fight his captain, provided he has served two years and asked to leave the company. If a father accuse his son of any crime by which he might be dishonored, the son may justly challenge his father to a duel, since the father has done him a greater injury by dishonoring him, than he did him good by bringing him into this world, and giving him life." In 1560 the states general of France, assembled at Orleans, besought Charles IX. to proceed with severity against dueling, and the third estate drew up a petition to the same effect. In 1566 an ordinance was issued which served somewhat later as a basis for the successive edicts of Henry IV. and Louis XIV., and which put dueling on the same footing as crimes punishable with death. The severity of the laws produced no effect, for in March, 1607, the Journal d' Estoile informs us that since the accession of Henry IV. (1589), that is, in 18 years, 4,000 gentlemen were killed in duels. (It would be a mistake, however, to take this figure without some grains of allowance.) The edict of 1626, of which cardinal Richelieu made such terrible use, proportioned the punishment to the degree of criminality. Provoking to a duel was punished by deprivation of office, confiscation of goods, and banishment for three years. Dueling, when it did not result in the death of either of the participants, was punishable with infamy and the scaffold. The seconds and witnesses were also punished with infamy. The death of Bouteville, who was executed June 22, 1627, on the place de Grève, produced a salutary effect upon the fighters. Richelieu, in this case, was relentless, and prevented Louis XIII. from granting the pardon which was begged of him, saying: "Sire, it is a question of cutting the throat of dueling, or of your majesty's edicts." Edicts against dueling appeared also in 1643; May 11, 1644; March 13, 1646; September, 1651; May, 1653; August, 1668; Aug. 13 and 14, and Sept. 14 and 30, 1679; December, 1704; and October, 1711. The rage for dueling, calmed for an instant, broke out again with renewed force, and in 1723 Louis XV. renewed solemn declarations, which were scarcely better respected than those of his predecessors.

I.390.4

—With the revolution of 1789 the political duel had its origin. The men of that epoch, however, were too thoroughly convinced of the mission they had to fulfill, and too conscious that they were risking their lives in the common interest, to do homage to the prejudice which had caused the death of so many. We read in Beaumarchais' memoirs: "I have not given information of Bertrand's challenge to the minister of public affairs, as many honorable men advised me to do. It is true, moreover, that I did not inflict a sword wound on Bertrand's thigh, because I found he had a heart to pierce; but I, in turn, summoned this captain, by a stamped challenge, to appear in the lists, in the hall of the palace, where my agent waited in vain for him for two days in succession."

I.390.5

—Camille Desmoulins refused to fight with two actors who took offense at his criticisms. "I would have to pass all my life in the Bois de Boulogne, if I were obliged to give satisfaction to all whom my frankness displeased. Let men accuse me of cowardice if they will. I very much fear that the time is not far distant when opportunities of dying gloriously and more usefully will not be wanting." At the same epoch, Mercier, Loustalot, and Prud'homme opposed dueling. June 15, 1792, the assembly condemned the deputy Jonneau to three days in the Abbaye for striking his colleague Grangeneuve. Nevertheless, the constituent assembly did not pass any law against dueling and the legislative assembly issued a decree of amnesty in favor of citizens detained for that cause. Duels were frequent in France under the empire, but politics had nothing to do with these single combats, which were generally between military men. Political duels re-appeared with the restoration: of royalists with Bonapartists, of Frenchmen with foreigners, of brigands of the Loire with the habits blancs. In 1830 rencontres were of almost daily occurrence. The same causes led, in 1848 and 1849, to the same effects. Gavini and Bailly presented to the legislative assembly a bill prohibiting dueling and condemning combatants and witnesses, whatever the issue of the rencontre, to a deprivation of civic rights for not less than one, nor more than ten years. The assembly rejected the proposed law.

I.390.6

—In France it was generally admitted, down to the year 1837, that the penal law was silent upon the question of dueling, but, beginning with this year, the court of appeal, in accordance with several requisitions of the procureur général, abandoning the tradition on the point, decided that homicide, or wounds resulting from a duel, should be punished conformably to the provisions of the penal code.

I.390.7

—Dueling is of frequent occurrence in Germany, especially in the universities. There are special tribunals charged to take cognizance of them. The new penal code, promulgated in Austria in 1855, contains special provisions relating to dueling. When a rencontre has occurred without either of the combatants being wounded, both have to undergo an imprisonment of from six months to one year; in case of wounds, the maximum of punishment is six years.

I.390.8

—If the combat has been a mortal conflict, the challenger is condemned to 10 or 20 years in carcere duro. The witnesses are liable to from six months' to five years' imprisonment, according to the results of the rencontre.

I.390.9

—In Switzerland, also, dueling has been made the object of special legislation, which, however, with very rare exceptions, has never been enforced. The Belgian penal code resembles in this point the Austrian code. The Dutch code is silent on the subject.

I.390.10

—In 1835 a law was passed by the legislature of Mississippi, which condemned the survivor in a duel to pay the debts of his victim.

I.390.11

—In 1841 a law was passed in Naples, inflicting eight years of compulsory labor on every person who participated in a duel, either as a combatant or as a witness. The Sardinian code is now in force throughout Italy Its provisions against dueling are very severe. In January, 1854, the criminal court of Genoa condemned to 20 years' banishment an aid-decamp of the national guard who had killed one of his fellow officers in a duel.

I.390.12

—In 1855 all the journalists of Madrid, with the intention of preventing the deplorable conflicts which were becoming more numerous every day, established a tribunal of honor, before which all contests which might result in an armed encounter, should be carried.

I.390.13

—In 1859 a young Russian captain who had the misfortune to kill his adversary in a duel, was taken before a council of war. He was condemned to military degradation, and the loss of his decorations.—"In China and in Persia," says E. Colombey, the author of a very remarkable history of dueling, which we have consulted with profit, "dueling is unknown; the insult recoils upon the one who offers it. The law takes it upon itself to inflict vengeance." When two Japanese quarrel, they agree to cut open their own stomachs; the one who performs the operation first is the conqueror, the other is disgraced. There are other points of information and many strange laws to be found in the work of de Cauchy on "Dueling," vol. ii.

I.390.14

—Before giving our personal opinion on dueling, it remains for us to analyze the opinions of different authors who have written on the subject. La Bruyère, who agrees with Mendez upon this point, says that dueling "is the triumph of fashion, in which it has exercised its tyranny with most display. This practice has not left the poltroon a chance to live; it has led him to death at the hand of a braver man than himself, and confounded him with a man of courage; it has attached honor and glory to a foolish and extravagant act" We do not believe we need introduce here J. J. Rousseau's eloquent apostrophe to duelists, and we shall continue our citations from the adversaries of dueling with the following from the works of the republican journalist Loustalot: "I ask every French patriot: do you wish to be free? Undoubtedly. Then renounce dueling; it is incompatible with every kind of liberty. What becomes of public liberty, if you are going to deprive the people of its best defenders, by making them fight duels? What becomes of individual liberty, if the first fool or the first miscreant that meets you can force you to stake your life against his? What becomes of the liberty of the press, if for every phrase, every expression, an author must fight with every man who finds it false or out of place?" According to the count of Portalis, society can not admit a theory which supposes other laws than its own. Dupin is of the same opinion as the count of Portalis, and, like him, thinks that "the theory of duels is the destruction of lawful order." "It is an astonishing thing," says Dupin a little farther on, "that among the apologists of dueling are found writers and orators who ask for the abolition of capital punishment, who hold that the right of man over man does not go to that extent, and who, nevertheless, even at the very moment they are denying to society as a whole the exercise of this right, claim it for themselves and accord it to the first chance comer." We will leave it to de Girardin to defend journalism against the accusations of Dupin. "In the times in which we live," he says, "duels are an anachronism; they belong to another régime, to manners and ideas which no longer exist. We declare that dueling has been an error in our education against which our experience protests. To the inferiority of injury let us oppose the superiority of scorn. If you are a man of honor, if you have nothing to hide at the risk of a wound, if you need not seek refugè in the intimidation of a pistol ball, will you avenge yourself upon the wretch or clown who has injured you by forcing him to redouble his injuries? The less moderation he shows, the more assured you will be of your revenge. If he began by having public opinion in his favor, he will not be slow to turn it against him. Then your satisfaction will be complete, and surely more effectual than if blood had flown. Every duel that ends without a wound is a farce. Every duel that ends with the death of one of the two combatants is deplorable. Every duel, therefore, is an absurdity, an insurrection of rashness against reason, a last resort of barbarity against civilization, an anachronism." There are authors, however, who undertake the defense of this custom, which is so violently attacked. Duclos thinks that dueling maintains a certain sensibility of soul more generous and especially more powerful than simple duty. Guizot believes that it is good, moral and useful; that it has jurisdiction over all those cases which ordinary jurisdictions do not reach. Thanks to this individual justice, urbanity of relations, and of social convention is maintained.

I.390.15

—For our own part it would be hard for us to defend dueling. The sword to us is no more reason than force or skill is right; but the impotency of repressive laws, the persistence of a custom against which everything has been said and well said, prove, as we imagine, that dueling is a fact which must be taken into consideration. In theory, every one believes that dueling is to be deplored; in practice, every one is inclined to resort to arms to avenge an injury. A prelate, when asked what he would do if one were to slap him in the face, replied, with witty candor, that he knew well what he should do, but did not know what he would do. Now, everything in the morals of a people ought to pass into its institutions; and to refuse to concern ourselves with the subject of dueling under the pretext that its existence should not be recognized, is to imitate the ostrich, which imagines itself concealed because with its head hidden in the sand it can see nothing. We think, therefore, that society, which is so much interested in the matter. should take cognizance of the terrible game in which the life of a man is so often staked. We could wish. for instance, that there should be established everywhere juries of honor, before which those who wish to have recourse to arms should present themselves with their witnesses, to settle their quarrel. The members of this jury, chosen from among men whose integrity should make their decisions beyond appeal, would investigate the causes of the rencontre, sanction or forbid it according to circumstances, and by dismissing immediately all with futile pretexts, would render duels more and more rare. John Reynand is of this opinion; and P. Stahl observes that this system of the jury of honor would offer greater guarantees than dueling as it is actually practiced, which is always in some way clandestine. "It is an anomaly for the law to tolerate what it forbids; justice which shuts and opens its eyes at will is no justice" We are entirely of this opinion, and for these reasons we could wish to see the law intervene in these strictly personal affairs only when one or other of the two adversaries refused to submit to the decision of the jury of honor, or should, by some dishonest act, enroll himself in the list of criminals.*77

HECTOR PESSARD.


Notes for this chapter


77.
We think, with our honorable collaborator, that something should be done against dueling. Experience has proven that a Draconian penalty would remain powerless. There is too flagrant an injustice in confounding with the assassin the honorable man who, yielding to a prejudice which reigns like a king in society, kills his equal, for public sentiment not to cry out against this too radical solution of the question. But we hesitate to admit the theory proposed by Mr. Pessard, although his proposition has already begun to be put in practice. The tribunal of honor can not but diminish the number of duels, but it does not attack the root of the prejudice. Rather would it strengthen it. Now, all our efforts should aim at its extermination. The best means to obtain this result will be, we believe: 1, to deny social recognition to any one who has challenged and then killed his adversary in a duel; 2, to have it admitted by the code of honor that no one is obliged to fight with a man who has already killed an adversary, or who, from the fact of having been engaged in three previous duels, has come to be considered as a professional duelist (we avoid using a stronger word); 3, rigorously to enforce the payment of fine and heavy pecuniary indemnity to the family of the victim; this last point is already reached. We do not flatter ourselves that we have thus solved the problem, but we would be happy to have indicated the true remedy.—M. B.

End of Notes


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