According to the maxim of the law of England, there is no rule more distinctly stated than that slaying, in a deliberate duel, is wilful murder; yet at all times considerable difficulties have arisen in this admission and construction.
The word murdrum appears to have been first used in the time of Canute; and was, according to Relyng, a term or description of a homicide committed in the worst manner. The presumption was, that the victim was a Dane, and that he was killed secretly and treacherously. If the murderer could not be found, the ville or hundred was amerced, and this fine was called murdrum. After the expulsion of the Danes, this law became a dead letter, until revived after the Conquest by William, when it was applied to the assassination of a Norman, or any Frenchman. In the reign of Henry III, the term murder was applied to the private slaying of any man, there being none present but those aiding in the perpetration of the deed.
In the reign of Richard II, murder was killing by await, assault, or malice prepense; but the distinction between murder and manslaughter was not clearly defined until the reign of Henry VIII, when benefit of clergy was taken away from the murderer. This distinction between murder and justifiable homicide se defendendo, or homicide per infortunium, was an important reform in our law, which at that period did not take into consideration the frail condition of mankind, and the influence of our passions, the more to be dreaded from the state of ignorance and superstition in which the nation was plunged. By our old law, if a man was killed in a quarrel, or in a sudden affray, it was equally felonious.
Many jurisconsults endeavoured to bring slaying in a duel within the class of murder, contrary to the general rule, that death ensuing in a mutual combat is only manslaughter; because, they said, when parties went out deliberately to fight with deadly weapons, there was presumptive malice aforethought, omitting all notice of treachery; which, in an ordinary duel, decided upon by seconds, appears to be the only ground for presuming that felonious malice was contemplated. It is evident that this distinction is one of the utmost importance. The primary object of a murderer is to destroy his victim; with this intention he attacks him, and although he may defend himself, yet the assault is treacherous as with malice aforethought; whereas the primary object of the duellist is to fight—the result of the meeting may be fatal or not,—his second consideration is to preserve his own life, and the third to put his adversary hors de combat.
Hawkins maintained that when divers rioters having forcibly taken possession of a house, afterwards killed the person whom they had ejected, as he was endeavouring in the night forcibly to regain possession and to fire the house, they were to be adjudged guilty of manslaughter only, notwithstanding they did the fact in maintenance of deliberate injury; perhaps, for this reason, because the person slain was so much in fault himself.
The same legal authority further says, “Some have gone so far as to hold that the seconds of the person killed are also equally guilty, in respect to that countenance which they gave to their principals in the execution of their purpose, by accompanying them therein, and being ready to bear a part with them:” but, perhaps, the contrary opinion is the more plausible; for it seems too severe a construction to make a man, by such reasoning, the murderer of his friend, to whom he was so far from intending a mischief, that he was ready to hazard his own life in his quarrel.
The highest authorities have strained the law to crush duelling without the aid of the legislature, and Hawkins says, that “it seems agreed, that whenever two persons in cold blood meet and fight on a precedent quarrel, and one of them is killed, the other is guilty of murder, and cannot help himself by alleging that he was first struck by the deceased.” Sir Edward Coke, in the case of Thomas, makes the following observation:—“As for direction to the jury, in cases of murder grounded upon former malice, it is very clear, and so it is adjudged in Plowden’s Commentaries, that if two men fall out, malice before is not anything material for the jury to inquire, but the subsequent matter, who began the affray; and if he be killed who offered the first wrong, yet it may be murder in the other who killed him, and the subsequent beginning not material.”
It would be foreign to the nature of this work to enter more fully into the legal opinions entertained on this matter by the greatest authorities, but many instances are upon record, in which, upon the judge’s charge, the survivor in a duel has been found guilty of murder. Such was the case of Morgan for the murder of Egerton; but he subsequently was pardoned, and set at large.
In the case of Richard Taverner a verdict of guilty of wilful murder was also found. The antagonist whom he had killed, was a man of the name of Bird, whose second, Hughes, was also killed. But many cases are on record, in which, notwithstanding the judge’s charge to the jury, a verdict of manslaughter was found.
During the early periods of our history, many challenges were sent, and combats have been prevented by regal and judicial interference. In the reign of Edward III, 1361, Henry, Duke of Lancaster, was challenged by the Duke of Brunswick to a combat before John, king of France, on account of some insulting language which the Duke of Lancaster had made use of. The challenge was accepted, and both parties appeared at the appointed time and place. But after they had entered the lists, the King of France interposed, and reconciled the parties. The field was in a plain near the Abbey of St. Germain des Prés, and the Bishop of Paris, Jean de Meulan, not to miss the sight, had slept at the Abbey the preceding night.