Duels and Ordeals

Most writers, in accounting for the origin of duelling, derive it from the warlike habits of those barbarous nations who overran Europe in the early centuries of the Christian era, and who knew no mode so effectual for settling their differences as the point of the sword. In fact, duelling, taken in its primitive and broadest sense, means nothing more than combatting, and is the universal resort of all wild animals, including man, to gain or defend their possessions, or avenge their insults. Two dogs who tear each other for a bone, or two bantams fighting on a dunghill for the love of some beautiful hen, or two fools on Wimbledon Common, shooting at each other to satisfy the laws of offended honour, stand on the same footing in this respect, and are, each and all, mere duellists. As civilization advanced, the best informed men naturally grew ashamed of such a mode of adjusting disputes, and the promulgation of some sort of laws for obtaining redress for injuries was the consequence. Still there were many cases in which the allegations of an accuser could not be rebutted by any positive proof on the part of the accused; and in all these, which must have been exceedingly numerous in the early stages of European society, the combat was resorted to. From its decision there was no appeal. God was supposed to nerve the arm of the combatant whose cause was just, and to grant him the victory over his opponent. As Montesquieu well remarks,¹ this belief was not unnatural among a people just emerging from barbarism. Their manners being wholly warlike, the man deficient in courage, the prime virtue of his fellows, was not unreasonably suspected of other vices besides cowardice, which is generally found to be co-existent with treachery. He, therefore, who showed himself most valiant in the encounter, was absolved by public opinion from any crime with which he might be charged. As a necessary consequence, society would have been reduced to its original elements, if the men of thought, as distinguished from the men of action, had not devised some means for taming the unruly passions of their fellows. With this view, governments commenced by restricting within the narrowest possible limits the cases in which it was lawful to prove or deny guilt by the single combat. By the law of Gondebaldus, King of the Burgundians, passed in the year 501, the proof by combat was allowed in all legal proceedings, in lieu of swearing. In the time of Charlemagne, the Burgundian practice had spread over the empire of the Francs, and not only the suitors for justice, but the witnesses, and even the judges, were obliged to defend their cause, their evidence, or their decision, at the point of the sword. Louis the Debonnaire, his successor, endeavoured to remedy the growing evil, by permitting the duel only in appeals of felony, in civil cases, or issue joined in a writ of right, and in cases of the court of chivalry, or attacks upon a man’s knighthood. None were exempt from these trials, but women, the sick and the maimed, and persons under fifteen or above sixty years of age. Ecclesiastics were allowed to produce champions in their stead. This practice, in the course of time, extended to all trials of civil and criminal cases, which had to be decided by battle.

The clergy, whose dominion was an intellectual one, never approved of a system of jurisprudence which tended so much to bring all things under the rule of the strongest arm. From the first they set their faces against duelling, and endeavoured, as far as the prejudices of their age would allow them, to curb the warlike spirit, so alien from the principles of religion. In the Council of Valentia, and afterwards in the Council of Trent, they excommunicated all persons engaged in duelling, and not only them, but even the assistants and spectators, declaring the custom to be hellish and detestable, and introduced by the Devil for the destruction both of body and soul. They added, also, that princes who connived at duels, should be deprived of all temporal power, jurisdiction, and dominion over the places where they had permitted them to be fought. It will be seen hereafter that this clause only encouraged the practice which it was intended to prevent.

But it was the blasphemous error of these early ages to expect that the Almighty, whenever he was called upon, would work a miracle in favour of a person unjustly accused. The priesthood, in condemning the duel, did not condemn the principle on which it was founded. They still encouraged the popular belief of Divine interference in all the disputes or differences that might arise among nations or individuals. It was the very same principle that regulated the ordeals, which, with all their influence, they supported against the duel. By the former, the power of deciding the guilt or innocence was vested wholly in their hands, while, by the latter, they enjoyed no power or privilege at all. It is not to be wondered at, that for