DUEL AND DUELING (from duellum, derived from duo) is a combat between two, at a time and place appointed in consequence of a challenge, and so is distinguished from an encounter taking place without any previous arrangement. The custom of dueling was de rived from the Germans, Danes and Franks, who carried the practice of the judicial combat so far that none were excused except women, sick people, cripples and such as were over 60 years of age. Even ecclesiastics and monks were obliged to maintain their controversies by a champion in arms; and this singular species of jurisprudence was not confined to criminal accusations, but the titles to estates were decided in the same manner. At length, however, this mode of trial was limited to those accusations of capital offenses in which there was no other testimony and in which common fame pro nounced the accused party to be guilty. The party vanquished was punished by hanging, be heading or mutilation of members. A judicial combat was authorized by Gundebald, king of the Burgundians, as early as 501 A.D. The prac tice of trying rights to land, as well as the guilt or innocence of an accused party, by combat under judicial authority, very naturally sug gested the decision of personal quarrels in the same way, and all cases in which there was no adequate. redress provided in the ordinary tribunals.
The example of Francis I of France and Charles V of Spain gave a sanction to this mode of arbitration. On the breaking up of the treaty between these sovereigns and the declaration of war by the French and English heralds at the court of Charles, 2 Jan. 1528, the emperor, in replying to the declaration of the French monarch, desired the herald to ac quaint his sovereign that he would henceforth consider him not only as a base violator of pub lic faith, but as a stranger to the honor and in tegrity becoming a gentleman. On receiving this message Francis immediately sent back the herald with a cartel of defiance, gave the Emperor the lie in form, challenged him to single combat and required him to appoint the time, place and weapons. Charles accepted the challenge; but after many messages concerning the arrange ments for the combat, accompanied with mutual reproaches bordering on the most indecent scur rility, all thoughts of the duel were given up. But this affair, though it thus terminated with out any encounter, is supposed .to have had a great influence in producing an important change in manners all over Europe. Upon every insult
or injury which seemed to touch his honor a gentleman thought himself entitled to draw his sword and to call on his adversary to give him satisfaction. Dueling raged with the greatest violence in France, where it is calculated that 6,000 persons fell in duels during 10 years of the reign of Henry IV. His celebrated minister, Sully, remonstrated against the practice; but the king connived at it, supposing that it tended to maintain a military spirit among his people. But afterward, in 1602, he issued a very severe decree against it and declared it to be punish able with death ; and at the same time com manded any person who had suffered wrong or received an insult to submit his case to the gov ernor of the province, in order that it might be considered by a tribunal consisting of the constables and marshals of France. This de cree, however, accompanied by the institution of a tribunal of honor, did not put an end to duels in France. Richelieu was firm in carrying out all edicts by which he hoped to check the power of the nobility, and accordingly insisted on the strict observance of those against duels. Under his ministry the Count of Bouteville Montmorency suffered death in 1627 for having violated a decree of the French Parliament against dueling. This had for a time the effect of deterring others from engaging in this prac tice. During the minority of Louis XIV the law was more feebly administered and more than 4,000 nobles are said to have lost their lives in duels. With the revolution of 1789 com menced the period of legal impunity for duels and a new class of duels became common, those, namely, between men engaged in politics. Bills, with a view to put down the practice, were brought forward in the Chambers in 1829 and 1830 and a similar proposal was made to the Council of State in 1832; but they were not accepted. At last, in 1837, the Court of Cassa tion determined to follow a new law with re gard to duels, and protesting against the practice in the name of morality and law, it decided that in case of death or injury resulting from a duel the principal parties and the seconds should be proceeded against and punished in accordance with the general provisions of the code penal. The French courts, however, re serve to themselves a discretionary power in dealing with cases of dueling, and the practice is by no means yet obsolete in France.