This curious practice of taking the law into one’s own hands, which we find existing in the midst of modern civilisation, is explicable, partly from the indifference with which legislators have treated offences against honour,[59] partly from the force of habit. The insulted person, finding no adequate legal remedy for the affront he has suffered, determines to be his own avenger, and challenges the offender to fight. Nor is revenge his only motive. He desires also to wash off the indignity by showing that he respects his honour more than his life. The notion that a challenge to mortal combat effaces the blot which an insult has imprinted upon a man’s honour is a survival from a period when the honourable man was above everything a brave man.[60] By displaying courage the offended party demonstrates that he is not worthy of contempt, by showing timidity he condemns himself. So far as justice is concerned, the duel, of course, became an absurdity as soon as it ceased to be looked upon in the light of an ordeal. It compels the insulted person to expose himself to a fresh injury from the side of an impudent offender, it allows the scoundrel to repay the most condign censure with a mortal stroke. But when a man’s honour is at stake the voice of justice is easily silenced, and the pressure of ancient habit is greater than ever. As is usual in similar cases, a variety of more or less futile arguments are adduced to give their support to the survival. Lord Kames maintained that, if two persons agree to decide their quarrel by single combat, the State has nothing to do with it, since they need not make use of the protection which the State offers them.[61] But, as a matter of fact, the duel is not a private affair between two individuals. As Moore observed, “a refusal of the duel is attended with such mortifying circumstances, with such an imputation of meanness and cowardice …, with such a studied contempt in public, and exclusion from the polite circle in private, as renders the alternative both cruel and inhuman”;[62] and it would seem that the State ought to protect its members against such a compulsion. It is said that the duel “grasps the sword of justice, which the laws have dropped, punishing what no code can chastise—contempt and insult.”[63] But we find that in countries where it no longer prevails, laws against insults, courts of honour, and especially more refined ideas as regards honorary satisfaction, have made it as useless as it is absurd, a matter of the past which nobody desires to revive.
[59] Cf. Bentham, Theory of Legislation, p. 299 sqq.
[60] That the modern duel is a special development of Chivalry has been pointed out by Buckle (History of Civilization in England, ii. 136 sq.).
[61] Kames, Sketches of the History of Man, i. 415 n.
[62] Moore, Full Inquiry into the Subject of Suicide, ii. 276.
[63] Quoted by Millingen, History of Duelling, i. 300.
CHAPTER XXII
BODILY INJURIES
CLOSELY related to the right to life is the right to bodily integrity. Indeed, homicide is, generally speaking, the highest form of bodily injury which can, in the nature of things, be inflicted, although there are some forms of ill-treatment which are more terrible than death itself.[1]
[1] Cf. Stephen, History of the Criminal Law of England, iii. 11.