[40] Esmein, op. cit. p. 95.
[41] For the worship of, and swearing by, weapons, see Du Cange, ‘Juramentum super arma,’ in Glossarium ad scriptores mediæ et infimæ Latinitatis, iii. 1616 sq.; Grimm, Deutsche Rechtsalterthümer, pp. 165, 166, 896; Pollock, Oxford Lectures, p. 269 sq. n. 1; Joyce Social History of Ancient Ireland, i. 286 sq. In Morocco, also, an oath taken on a weapon is considered a particularly solemn form of swearing.
In most European countries the judicial duel survived the close of the Middle Ages, but disappeared shortly afterwards.[42] Various circumstances contributed to its decline and final disappearance. From an early period Councils and popes had declared against it,[43] but with little success; many ecclesiastics, indeed, not only connived at the practice, but authorised it, and questions concerning the property of churches and monasteries were decided by combat.[44] There were other more powerful causes at work—the growth of communes, devoted to the arts of peace, seeking their interest in the pursuits of industry and commerce, and enjoying the advantage of settled and permanent tribunals; the revival of Roman law, which began to undermine all the institutions of feudalism;[45] the ascendency of the royal power in its struggle against the nobles; the increase of enlightenment, the decrease of superstition. But though finally banished from the courts of justice, the duel did not die. In the sixteenth century, when the judicial combat faded away, the duel of honour began to flourish.[46] Buckle justly observes that, “as the trial by battle became disused, the people, clinging to their old customs, became more addicted to duelling”;[47] hence the judicial duel may be regarded as the direct parent of the modern duel.[48] The Church and the State naturally tried to suppress this sanguinary survival of barbarism. The Council of Trent declared that “the detestable custom of duelling, introduced by the contrivance of the devil, that by the bloody death of the body he may accomplish the ruin of the soul,” was to be utterly exterminated from the Christian world, and that not only principals and seconds, but anyone who had given counsel in the case of a duel, or had in any other way persuaded a person thereunto, as also the spectators thereof, should be subjected to excommunication and perpetual malediction.[49] In England, Cromwell’s Parliament made a determined effort to check the practice.[50] A Scotch law of 1600 rendered the bare act of engaging in a duel, without license from the king, a capital offence.[51] About the same period the Spanish Cortes passed a law which subjected all parties to a duel to the penalties of treason.[52] In 1602, Henry IV. of France issued an edict condemning to death whoever should give or accept a challenge or act as second;[53] and already several edicts against duelling had been promulgated under Louis XIII.[54] when, in 1626, there was published a new one punishing with death any person who had killed his adversary in a duel, or had been found guilty of sending a challenge a second time.[55] But all these enactments had little or no effect. We are told that in the eight years between 1601 and 1609, two thousand men of noble birth fell in duels in France; and, according to Lord Herbert of Cherbury, who was ambassador at the court of Louis XIII., there was scarce a Frenchman worth looking on who had not killed his man in a duel.[56] As Robertson observes, in reference to duelling, “no custom, how absurd soever it may be, if it has subsisted long, or derives its force from the manners and prejudices of the age in which it prevails, was ever abolished by the bare promulgation of laws and statutes.”[57] In spite of laws which directly prohibit duelling, or which punish with great severity anyone who kills another in a duel, sometimes even subjecting him to punishment for murder,[58] the duel still prevails in many European countries as a recognised custom, so much supported by public opinion that the laws referring to it are seldom or never applied.
[42] Lea, op. cit. p. 199 sqq. In England, however, it was formally abolished by law as late as 1819 (Stephen, History of the Criminal Law of England, i. 249 sq.).
[43] Du Boys, Histoire du droit criminel des peuples modernes, ii. 182. Lea, op. cit. p. 206 sqq.
[44] Robertson, History of the Reign of the Emperor Charles V. i. 357 sq. ‘Notitia gurpitionis,’ in Bouquet, Recueil des historiens des Gaules et de la France, ix. 729.
[45] Lea, op. cit. pp. 200-205, 211 sq. Unger, loc. cit. p. 392 sqq.
[46] Storr, ‘Duel,’ in Encyclopædia Britannica, vii. 512.
[47] Buckle, Miscellaneous and Posthumous Works, i. 386. Cf. Bosquett, Treatise on Duelling, p. 79.
[48] Storr, loc. cit. p. 511.