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THE DUEL 

Legal and Ecclesiastical Opposition to Duelling

Le Saint Concile de Trente (1674). The Council of Trent (1545-1563) prescribed heavy penalties for duelling, yet the practice did not diminish in France.

There was no dearth of opposition to all forms of duelling by either state or church authorities, beginning as early as the 11th century. As we have seen, the 1041 Truce of God and Louis VII’s 1167 prohibition chipped away at trial by combat, and the 1148 Council of Reims denied Christian burial to tournament casualties. When the Council of Trent (1545-1563) in its 19th canon prohibited princes from providing a closed field for combat on penalty of excommunication, and condemned duellists, accomplices, and spectators to excommunication, a severe blow was dealt to all forms of duelling in France - in theory, that is. France never recognized the Council’s decrees, in great part due to the 19th canon. [13] Isolated French clergy continued the attack on duelling, building support among ecclesiastics, and Church condemnation of the practice continued vigorously throughout the 16th and 17th centuries.

Recueil des Edits...concernant les duels (1689). Collected French duelling laws from the reigns of Henri IV, Louis XIII, and Louis XIV, years which saw frequent duelling in France.

Opposition by the State in France took the form of “severity in theory and leniency in practice.” [14] Anti-duelling measures were promulgated with increasing frequency. Henri IV (reigned 1589-1610) and Louis XIII (reigned 1610-1643) issued anti-duelling edicts, but also issued liberal pardons (seven thousand in nineteen years by Henri IV alone) [15] ; during the reign of Louis XIV (1643-1715) at least ten edicts aimed at curtailing duelling were issued, until he found it necessary to issue the Edit des Duels (1679) which ordered death and confiscation of property for duellists and their accomplices. The Edit also established a Court of Honor to decide penalties for transgressions. However, Louis XIV, like his predecessors, was inconsistent in support of his own laws and intentionally disregarded known violations. The practice of duelling in France continued much as it had before.

Commentaries on the Laws of England (1765). The great English jurist William Blackstone (1723-1780) was uncompromising in his common law analysis of duelling:"...in the case of deliberate duelling, where both parties meet avowedly with an intent to murder: thinking it their duty, as gentlemen, and claiming it as their right, to wanton with their own lives and those of their fellow creatures; without any warrant or authority from any power either divine or human, but in direct contradiction to the laws both of God and man: and therefore the law has justly fixed the crime and punishment of murder, on them, and on their seconds also." Having made this pronouncement, Blackstone concedes the deficiency of mere law in controlling duelling: "the strongest prohibitions and penalties of the law will never be entirely effectual to eradicate this unhappy custom; till a method be found out of compelling the original aggressor to make some other satisfaction to the affronted party, which the world shall esteem equally reputable..."

Duelling always had been illegal at common law, where the transgression was punished according to which offense had been committed under the common law. Thus, “A would-be duelist, who merely challenged another to duel, was held to have committed incitement; duelists who fought, but both of whom survived, would be tried for assault; and in the case of a duel where one combatant died, the survivor was held guilty of either manslaughter or murder.” [16] The common law approach garnered more prosecutions and convictions than the continental European approach, which targeted duelling directly as a separate offense. These laws frequently were sidestepped by aristocratic offenders as well as the state entrusted with applying them.

A Tract on Duelling (1790). British abolitionist Granville Sharp (1735-1813) also actively campaigned to end duelling. This London imprint highlights the common law approach to offenses associated with duelling, here manslaughter and murder.

Speeches of the Hon. Samuel Prentiss of Vermont: Upon the Bill to Prohibit the Giving or Accepting of Challenges to Duels in the District of Columbia (1838). Following the death of Rep. Jonathan Cilley in a duel, Congress outlawed duelling in Washington, effective in 1839.

In America, duelling was principally a tradition of the Southern gentry which intensified in the early 19th century. Most early anti-duelling legislation sought to deter duelling by barring duellists from public office. Although enactment of anti-duelling legislation lagged, eventually all states in the Union and the District of Columbia (1839) passed legislation prohibiting duelling, and a number of state constitutions, among them Maryland, Virginia, Texas, and California, contained anti-duelling language. American duelling did not enjoy the degree of popular favor it did in Europe, possibly because although Southerners were fond of the institution, the Northern states never internalized it as part of their culture. Many writers have linked the decline of duelling in America to the end of the Civil War, consistent with Confederate defeat and the universal tendency of duelling to ebb during and in the wake of wartime. Others have cited the efficacy of ever more stringent duelling laws. Sporadic episodes continued into the 20th century, yet duelling had passed its zenith in this country and ceased to be a powerful social custom.

De Iure Belli Ac Pacis (1642). The "Father of International Law," Hugo Grotius (1538-1645), proposed that duelling could be employed to resolve international conflicts.  Designated fighters ("champions") could engage in a duel, the outcome of which would determine the victor of the conflict between states, therby saving the lives of many soldiers who otherwise would go to war.

These illustrations are emblematic of widespread attempts by the law and the Church to eliminate duelling. Yet duelling continued into the 20th century. Issues of honor over which duels were fought for the most part were not justiciable in courts of law. And for those issues which were, duellists were unwilling to submit to the courts in preference to private resolution. The system of honor to which duellists subscribed operated outside the civil and criminal justice systems, as well as the Church. Duellists could ignore law and Church, with officials turning a blind eye because of the social status of the transgressors. The dominance of royalty and nobility in Europe, and of lawyers, politicians, and gentry in America, was undeniable, since in many cases these very individuals were the transgressors as well as the police. And often, by these same individuals, laws were drafted intentionally to provide avenues for avoidance of penalties.

The American Musuem (January, 1792).  America's first literary journal published a constellation of articles on the issues of the day, including several which addressed duelling.  This article offers a surprisingly modern suggestion for a peaceful alternative to duelling, with the hopeful thought that "tribunals of honour" would replace the practice altogether.

The decline of duelling. It is uncertain to what degree the widespread and prolonged worldwide anti-duelling efforts, both legal and ecclesiastical, contributed to the decline of duelling. Yet it is clear that duelling over its lifetime as a robust social phenomenon of the aristocracy mastered most legal attempts to contain it. Indeed, its disappearance in common use by the 20th century as a method of deciding disputes suggests a link to the widespread democratization of the world’s societies, rather than a sudden or even gradual capitulation to the law. What remains today, apart from isolated encounters in France and Germany, are stylized derivative games such as fencing and jousting. They remind us of the other way disputes were settled, outside court, before the 20th century.