Wager of Battle, Duel

WAGER OF BATTLE, DUEL. I. Wager of Battle. The Appeal to Deity($1).

The Nations Using It (§ 2).
Progress toward its Abolishment (§ 3).
II. The Duel. History (§ 1).
Attitude of the Churches; Difficulties (§ 2).

Ethics of the Duel (§ 3).

I. Wager of Battle: The wager of battle is a form of Ordeal (q.v.), the usual means of which is the single combat, though occasionally the combat is multiplex. The character of the ordeal as an appeal to the deity for decision in a disputed case is fully carried out, as is illustrated by the meeting between

Menelaus and Paris (Iliad, iii. 276-323). r. The In this there were sacrifice to Zeus, Appeal to formal and punctilious arrangement of

Deity. the field and placing of the combatants, appeal to the lot for precedence, and prayer to the god to decide by sending the guilty to Hades. That the case as described by the poet was not regarded as isolated but as conducted in accordance with the custom of the times, is clear from the fact that the marshals appear to act after a well known method of procedure. So wherever trial by battle is employed, this same characteristic of appeal to deity is discovered. When the nations using it adopted Christianity, the combat remained, but under appeal to a different arbiter. Each party to the battle asserted the justice of his cause by oath on the Gospels, or on an approved relic; defeat was ipso facto evidence of perjury, to punishment for which it exposed the loser, and he was disqualified thereafter for giving evidence or serving in court.

The area for which this custom is demonstrable is that of the western Aryan peoples, with the possible exception of the Romans. Thus that the Celts had it is shown by the Senchus Mor and by a canon (no. 8) attributed to St. Patrick (extracts from the Senchus are given in Haddan and Stubbs, Councils, II., ii. 339 sqq.; the canon is in the same collection, p. 329). Among the Teutons particularly the wager was at home. The holmgang (so named because it was usually fought on a holm or small island) was with the northern Teutons s. The a recognized method of settling a disNations pute or acquiring a right, and the vicUsing it. for sacrificed an ox at the conclusion.

When the laws of the Teutons were collected into codes, the judicial combat was conspicuously present, as in the Gundobaldic, Bavarian, Lombardic, Frankish, and other early collections, but not in the Anglo-Saxon and AngloDanish. The Slavic peoples constantly settled disputes by this means. It was so thoroughly implanted in the Lombardic legal practise that even Liutprand was unable to make headway against it. It was sanctioned by Charlemagne (with reservartions against it in certain cases); Louis-le-Debonnaire permitted it between an ecclesiastic and a layman, and Emperor Guy restored the privilege complete as between ecclesiastics; Otho the Great defended and enforced its use, and sent champions (see below) to enforce his claims in his dispute with Pope John XII., and in 971 ordered the confiscation of the estates of those who refused to employ it; champions became a part of the suite of ambassadors in order the better to enforce the claims of rival powers; Otho II. in 983 substituted it for the sacramental oath; Henry II. allowed it, as an appeal, to murderers; the Guelph line of monarchs is reputed to be founded on the confiscation of the duchy of Bavaria because its duke refused the combat, and his title was thereupon bestowed upon Welf, Pon of Cunigunda; Henry the Lion of Bavaria lost his possessions because of default in the wager of

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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 sentiment 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 went. debarred. Gradually this office became a profession, in many cases adopted 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 Cundobardi and Liber contra judicium Dei; Atto of Vercelli (see ATro, 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 Tourna,y, 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 Warn 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. GEO. W. GirazoxE.

II. 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,

z. History. and also strenuous opposition to the institution as well as defense of it. Von Bulow 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 dis regard of public justice, then it is difficult to show that it is un-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 1843 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

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honor being invoked first to avert the combat and then, if that is not reached, to have the conditions the guilty under observation of one of the court. Anti-duel- ing 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. XXV., 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 duel- ist 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. h But the event of 1896, already referred to, evoked some strong expressions of condemnation as travers- ing human law and the divine order. The difficul- ties 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 Seri- ous meeting with weapons. The seriousness rests not upon the character of the weapons, however, but in the hostility of the meeting. The jurists dis- criminate between two species of duel, that in de- fence 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 de- fend 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 recog- nized 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 a0 with reference to ability to give "satisfaction." A conclusive decision concerning the duel takes g 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 under public law; no more decisive is the fact that in the duel the innocent often suffers and goes free, for this occurs in public administration of justice; and the Christian idea of honor does not come into the account, since it is conceivable that love for one's neighbor may involve one legitimately in the duel. Abstract and applied ethics are dif ferent things. The Christianity of the individual is bound up with a nature in which are ingrown native instincts and prejudices, while the individual moves in an environment in which values are fixed by custom Hence it results that he has to take account of an honor of position as well as of that honor which is his as a Christian. Each class has something of this, and sometimes with opposite results. A pastor is by a duel made unfit for his office, an army officer may not refuse a duel on pain of losing his position and the honor due to it; yet both have as Christians the same honor. The same conduct can not be exacted of these two men in their diverse associations. For the officer in the army onor of position is a vital thing. If the conditions of life are wrong, the task is to change them; if honor of position is unwarranted, it is to be set aside, and the way is.to be prepared for abolishing the duel. Christianity has to deal with analogous conditions, such as the compulsory oath, religious education, baptism, and the like; in the mission field polygamy has to be tolerated. The reason for these things is the imperfection of the state of society. So with society in Germany, where class distinctions are sanctioned at least tacitly by the Church, out of which distinctions grows the duel. Indeed, the latter is rather a symptom. To abolish dueling there is necessary a.revulsion of public sentiment, which must work against what is at present an ex ceedingly strongly entrenched feeling. Even those who maintain the code of honor must work for the alleviation of the duel, for the removal of false posi tions and the improvement of the code. In the duel, in its very operation, the moral vagabond as sumes the position of the morally upright, the innocent stands on the same plane as the guilty. Could this alleged equality, but real inequality, be abolished, the conception of the honor of position would be purified and a way opened for a con servative estimate of the duel which would lead to its inclusion within the strict path of Christian duty.

(M. Rade.)

Bibliography: Lists of literature on the subject are: Hauck Herzog, RE, xxi. 759-760 (giving titles of books, mainly in German, issued during the controversy in Germany, 1896 sqq., conceasning the duel, decided in favor of the practise by public opinion and te emperor); C. A. Thimm, Bibliography of Fencing and Duelling, London, 1896; G. E. Levi and J. Gelli, Bibliografca del Duello, Milan, 1903. An excellent review of the history of the wager of battle is H. C. Lea, Superstition and Force, pp. 93-21s, Phila delphia, 1878. Literature which dels with the subject will be found under Ordeal Consult further: Thatcher and McNeal, Source Book, pp. 388-400; J. Milligan. Hist. of Duelling, 2 vols., London, 1841; A. Steinmetz, The Romance of Duelling, 2 vols., London, 1868; C. de Massi, The Hist. of Duelling, London, 1880; B. G. Truman, The Field of Honour, New York, 1884; J. Gelli, IL Duello nella scoria dells giurisprudenza, Florence, 1886; A. von Oppen heim, Das Wesen des Duello, Vienna, 1887; C. Thuemmel. Der gerichtliche Zweikampf und das heutige Dwell, Ham burg, 1887; J. Cockburn, Hist. of Duels, 2 vols., Edinburgh, 1888; G. Neilson, Trial by Combat, Glasgow, 1890; G.

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Letainturier-Fradin, Le Duel h trmvera les tgea, Paris, 1892; Vidal de Saint-Urbain, Le Duel soua l'ancien regime et de nos joura, Dijon, 1892; C. de Smedt, Le Dud judiciaire d l'epliae, Paris, 1895; A. Wiesinger, Das Duell vor dem RichEerstuhle der Religion, Gres, 1895; H. Pierquin. La ,lurfdicMon du point d'honneur Goes I'ancien regime, Paris, 1904; H. Fehr, Der ZweikampJ, Berlin, 1908; C. L. Brace, Geata Christi, chap. aiv., new issue, London and New York, 1911.