Duel is a concerted deadly fight satisfaction for the of honor. § 1767. A DUEL is a concerted fight between two persons, with deadly weapons, the object of which is claimed to be the satisfaction of wounded honor. To the Romans and Greeks it was unknown, though with them, as with the Jews, the usage existed of committing the settlement of national or tribal quarrels to two champions who were to decide the question in a single fight. To such encounters, as well as to the fights of voluntary champions in public games, the ordinary laws of homicide did not apply: "Quia gloriae causa et virtutis, non iniuriae causa videtur damnum datum." But this was because such contests were engaged in for public purposes and under public 1 The English Draft Code of 1879 challenges, or knowingly carries any contains the following:challenge, to or endeavors by any means to provoke any person to fight a duel, or endeavors to provoke any person to challenge any other person to fight a duel." "Every one shall be guilty of an indictable offence, and shall be liable upon conviction thereof to one year's imprisonment with hard labor, who sanction. There can be no question that if two individuals, to redress private wrongs or insults, had coolly agreed to fight with deadly weapons, the death of either party, had it resulted, would have been considered murder. § 1768. Duels, in their modern sense, took their origin from the chivalric idea inherent in feudalism; an idea which treated knightly honor as a quality so delicate and precious that an insult to it could only be satisfied by an appeal to arms. Naturally, therefore, the feudal jurisprudence treated duelling with indulgence; and hence when we search the old English common law, the only utterances on this point that we can find are ambiguous or apologetic. The canon law, however, spoke with unequivocal sternness. To that law there was no distinction between gentle and simple, between knight and serf; and the condemnation it pronounced on the serf who killed another serf in a vulgar but premeditated fight, it pronounced on the knight who killed another knight in a duel conducted according to all the rules of chivalry. "Detestabilis duellorum usus, fabricante diabolo introductus, et cruenta corporum morte animarum etiam perniciem lucretur." Gradually this principle worked Sending challenge a misde meanor at common law. itself from the English ecclesiastical to the English common law courts, till the doctrine was reached, that to send a challenge is a misdemeanor at common law, even though the challenge be declined; and, as already expressed, that killing in a duel is murder, and that all persons engaged in preparing the duel, if assisting at the death, are principals, if absent, accessaries before the fact.3 § 1769. But this view, as already seen, it has been found impracticable to carry into uniform practice, even where death results, and where the party who strikes the fatal blow is defendant. Still greater is the difficulty when the seconds are on trial, or when the result was not fatal. By statute specific penalties inflicted. Acta conc. Trid. 1562; Decret. de reform. cap. xix. This is but a condensation of the old canon law. 2 R. v. Langley, 2 Ld. Raymond, 1029; R. v. Phillips, 6 East, 464; R. v. Young, 8 C. & P. 644. See Duel Cases, 2 How. St. Tr. 1033, 1047; Smith v. State, 1 Stew. 506; State v. Perkins, 6 Blackf. 20. See supra, § 215. The curious reader, who seeks to examine the his- Hence a series of statutes have been passed, assigning specific and graduated punishments to those sending challenges, and those concerned in arranging or abetting duels. It is with these statutes we have at present to do, touching only on certain generic features which are common to all. The com bat must be premedi tated. § 1770. We must distinguish between the duel and the rencontre, which is a sudden fight, springing up when the parties are in hot blood, and when there is no time to cool between the provocation and the summons to fight and the fight itself. Hence the statutes against challenges, construed strictly, do not apply to fights demanded in hot blood by a party or his friends. Such demands are governed by the rules of the common law, as defined in riotous homicide, or homicide in sudden quarrels.1 And if no physical injuries ensue, the participants are indictable for affrays or attempts. as weapons must be intended. § 1771. Challenges to fight with weapons not deadly, e. g., with fists, do not come under the duelling statutes, though indictable at common law as attempts, or as breaches of Deadly the public peace; and so where a challenge is intended joke, or where the weapons to be used are intended by the challenging party to be harmless, and are so known to the other parties. Yet if the principals intend to use deadly weapons, it is no defence that the pistols are by a subsequent trick of the seconds, unknown to the principals, loaded only with blank cartridges. But it is not requisite, to constitute the offence, that any special weapons should be used. Hence under this head may be classed what a German expositor" styles the " Amerikanische Duell," i. e., a drawing lots as to which of two parties shall die, as a satisfaction to the wounded honor of one of them. So far as concerns the challenge, it is no matter in what terms it is couched. If it be an invitation to fight with deadly weapons, the case is covered by the statute, no matter how artful may be the disguise." 1 Supra, §§ 396, 455. 2 Com. v. Whitehead, 2 Bost. Law Rep. 148; State v. Farrier, 1 Hawks, 487; State v. Taylor, Brev. 243. See Aulger v. People, 34 Ill. 486; Com. v. Tibbs, 1 Dana, 524. 3 Com. v. Hart, 6 J. J. Marsh. 119. 4 See supra, §§ 173 et seq. 6 Holzendorff's Encyc. ii. 721. • Infra, § 1777; State v. Perkins, 6 Blackf. 20; Com. v. Hart, 6 J. J. Marsh. 119; Com. v. Tibbs, 1 Dana, 524; Com. must be for to honor. § 1772. Suppose, in a foundering boat, a passenger proposes that lots should be drawn as to who should be cast overboard, Challenge in order to lighten the boat? This would not be a satisfaction challenge under the duelling statutes, and it might be claimed to be excusable at common law.1 But the term "honor," even when used in statutes, must not be construed too scantily. Wherever one man, except under legal necessity, challenges another to single combat with deadly weapons, to redress any injury, real or fancied, to self, there the case is met. Persons provoking challenge are indictable at common § 1773. A duellist, desiring himself to escape the penalties of the statutes, who succeeds by skilful insults in provoking another to challenge him, may be responsible at common law. It would be a gross injustice in such a case to punish the challenger, who is really the assailed party, and to let the challenged party, who is really the assailant, go free. Under the statutes, the latter may not be reached ;2 but the common law here, as elsewhere, penetrates to the merits, and holds that he who thus designedly provokes a challenge is guilty of an indictable offence. law. v. Pope, 3 Ibid. 418; State v. Farrier, 2 Com. v. Tibbs, 1 Dana, 524. 3 Supra, § 179; 1 Gabbett Crim. Law, 66; 1 Hawk. P. C. ss. 18, 19; 1 Deacon Crim. Law, 219; Booth by Crim. Law (ed. 1854), 60. See R. v. Rice, 3 East, 581; R. v. Phillips, 6 Ibid. 464; R. v. Cuddy, 1 C. & K. 210; R. v. Young, 8 C. & P. 644; State v. Farrier, 1 Hawks. 487; State v. Taylor, 1 Const. Rep. 107; 3 Brev. 243. That all concerned are liable, see cases just cited, and see Com. ". Lambert, 9 Leigh. 603; Cullen v. Com., 24 Grat. 624. "Challenges to break the peace by fighting," says Mr. Talfourd, in his edition of Dickinson's Quarter Sessions (p. 325), "are indictable as misdemeanors, as well in those who send, as those who knowingly carry, them. Upon the same principle, employing words or writings for the purpose of provoking another to send a challenge, where the tendency is direct and manifest, is equally indictable, even though the provocation should fail in its object. And no previous misconduct on the part of the individual challenged or provoked will form a defence against such indictment, so as to entitle the defendant to an acquittal, although it will weigh with the court in determining the sentence. Where, indeed, a party challenged applies to the Court of Queen's Bench for a criminal.information, that extraordinary remedy will not be granted, if he shall appear to have given provocation to his adversary, but he will be left to indict at the assizes or session. The punishment, on conviction, is fine or imprisonment, or both, at the discretion of the court." No defence to be § 1774. Where a challenge is given in one State to fight a duel in another State, the offence of challenging is continuous, and may be tried in either jurisdiction; though if the that duel is challenge be in writing, it may be expedient, in the jurisdiction of consummation, to charge the offence as an tra-territooral renewal. Clearly a challenge to fight in another State is penally cognizable in the State in which the challenge is issued. Nor is it necessary to prove that the challenge ever reached its destination." fought ex rially. § 1774 a. All who are concerned in a duel are respon- All consible under the limitations heretofore stated as applying cerned are to principal and accessary. II. INDICTMENT. responsible. Challenge $1775. A written letter, if merely the inducement or introduc. tion to an oral communication, conveying a challenge, need not be set forth. Thus where T., in a letter to N., need not be used expressions implying a challenge, and by a post- specially script referred N., the challenged party, to one H. (the bearer of the letter), if any further arrangements were necessary, it was held that the letter was only evidence of the challenge, and need not be specially pleaded; and that N. might give testimony of the conversation between H., the bearer of the letter, and himself. Even when a statute makes sending a challenge indictable, it has been held not necessary to set out a copy of the challenge; and if an attempt be made to set out in the indictment a copy, and it varies slightly from the original, as by the addition or omission of a letter, no way altering the sense, it has been said that such variance after verdict is cured.? To set forth the substance, when the challenge is partly oral, is enough.8 1 See supra, § 288. 2 R. v. Williams, 2 Camp. 506; State v. Taylor, 3 Brev. 243; 1 Tr. Const. Rep. 107; Harris v. State, 58 Ga. 332; State v. Farrier, 1 Hawks, 487. See Ivey v. State, 12 Ala. 276. R. v. Williams, supra. • Supra, §§ 215, 482; R. v. Taylor, L. R. 2 C. C. 147; Com. v. Lambert, 9 Leigh, 603. As to surgeons, see Cullen v. Com., 24 Grat. 624. 5 State v. Taylor, ut supra. 6 Brown v. Com., 2 Va. Cas. 516. 7 State v. Farrier, 1 Hawks, 487. See Heffren v. Com., 4 Met. (Ky.) 5; Ivey v. State, 12 Ala. 276; Com. v. Tibbs, 1 Dana, 524. s Ivey v. State, 12 Ala. 276. |