Duel

DUEL. - The d. (duellum = bellum, according to the meaning of the ancient sources, combat in general or single combat) is today the name for any combat, agreed upon, between two or more persons in equal number, for a private cause, with the observance of certain norms established by chivalric custom. The d., thus conducted, is also punished as a crime in ecclesiastical legislation. In the agreement for the d., ordinarily preceded by the challenge or communication of the intention to fight, the place, the time and the weapons with which to fight are established.

In the preparation for the d. and in its execution there enter, when the d. is solemn, a whole retinue of persons, such as the bearers of the challenge, seconds, that is arbiters of the d. and of the observance of the chivalric norms, physicians for the assistance of the wounded, and other abettors, such as those assigned to keep watch for possible interventions by the police.

A distinction is therefore drawn between the d. and the brawl, which is a sudden combat without fixed norms. It is distinguished from war, a clash or series of clashes between two armies, and it is further distinguished from that form of combat between two or a few soldiers, to decide the fortunes of a war in a simpler way than by the clash of two armies, such as the combat of David with Goliath in sacred history, of the Horatii and Curiatii in classical history: a form of combat undoubtedly lawful, as war is lawful under determinate conditions. It is further distinguished from pugilism (boxing), which is not a true combat fought with weapons lethal in themselves, although even this form of struggle often becomes unlawful if protracted to the complete stunning of the opponent (to knock out).

Perhaps a derivation of the judgments of God, the d. is the product of a barbaric age, in which wrongs, not repaired by the intervention of public force, were abandoned to private vengeance; preserved and brought back to life by a society not permeated by the spirit of the Gospel and in opposition to the refinement of customs produced by Christianity; legitimized by false conceptions of honor and esteem. The d. can be carried out in various forms and with various weapons. Very common is the distinction between solemn and simple d., between d. to first or to last blood, that is until the death of at least one of the contenders. The American-style d., in which the acceptor must choose between two weapons, one of which is loaded and the other not, and between two pills, one of which is poisoned and the other not, and thus fight with unequal weapons, does not correspond to the configuration of the crime of the d., although it always merits moral reprobation. On the other hand, the test of strength (Bestimmungsmensur) in use among the students of German universities does correspond to the concept of the d. mentioned above, inasmuch as it is not a simple fencing exercise, but a true agreed combat between two persons, even if to first blood (cf. Sacred Congregation of the Council, 9 Aug. 1890; 23 Jan. 1904; 10 Feb. 1923; 13 June 1925).

The d. is against the natural law, which forbids killing or wounding others, as well as exposing one's own life to a grave danger. The d. partakes of the malice of homicide and of suicide together: homicide insofar as it is an attack against the life of another; suicide insofar as it recklessly exposes one's own life to grave danger, without any plausible reason. And even if the intention of the duellists to persist in the d. to last blood is excluded, it still goes against the natural and divine law, which forbids not only intended homicide, but also that to which one can, even without intending it, give a remote occasion, and forbids any voluntary injury of one's neighbor. Nor does it avail to say that there is compensation between the two parties, since both are equally assailed, and one does not run a greater danger than the other. Granted that they are assailed; but they are also assailants, and therefore both guilty. And even granting that the danger in itself and by itself is small, events nonetheless sometimes exceed expectations. In any case, to wound or to seek to wound is always something forbidden by divine and human law.

Moreover the d. also goes against the social order, because it substitutes personal vengeance or justice for the authority of the State and the majesty of the law. The false maxims concerning honor that are adduced to justify it do not serve the purpose. The offended party, or he who believes himself offended, challenges the offender, and imposes on him an act to which he himself is equally subject with the same risks and duties.

Where is the reparation, if the offended party must pay the same price and the same satisfaction as the offender?

To these observations the opinion and judgment of the majority assent. As long as the matter is discussed theoretically, it is not difficult to find agreement with the judgment condemning the d. as a prodigious incoherence, a ferocious prejudice, a residue of feudalism and barbarism. In the practical case, prejudice often prevails over everything.

Duels are fought and accepted (our chronicles know quite recent examples), against conscience indeed, out of fear of being called cowards, that is out of fear of being afraid.

The united efforts of religion and civilization succeeded in showing the absurdity, but have not so far succeeded in eradicating it. The codes fix sanctions, but trials are not held, verdicts are not condemnations, condemnations are not expiated. The crime, unlike others, inflicts dishonor, according to preconceptions, on him who does not commit it.

Some hope was placed in the last century in the anti-duelling movement, which arose following a double scandal given by the Austrian general staff, which, against the military and civil codes condemning the d., struck from the list of officers a Catholic (marquis Taccoli), guilty of not having accepted the d., and another (count Leodochowski), guilty of having given the advice to refer the dispute to the military tribunal of honor.

The movement had as its promoter Prince Don Alfonso of Bourbon and Austria-Este, and on his initiative anti-duelling leagues arose with the program of reforming legislation, promoting the institution of councils of honor, destined to replace the use of arms, thus seconding the word of condemnation renewed by the Holy See with the letter of Leo XIII to the bishops of Germany (Pastoralis offici, 22 Sept. 1891), but the hopes fell miserably.

While the d. always remains in itself unlawful for the reasons set out above, given nonetheless these persistent social prejudices, moralists ask themselves whether it is lawful to accept a true and proper d. in the case where, by refusing the challenge, one would come to lose one's position to the detriment of one's dignity and of economic advantages of notable magnitude. Opinions are conflicting, so that one could not consider guilty of grave fault one who, in these conditions, yields to the current prejudices concerning honor and chivalry, after having done all that is possible to exempt himself. It is a rather rare case, which in Italy, for example, where the d. is proscribed also by civil law (Italian Penal Code, arts. 394-401), could hardly occur.

It is forbidden, on the other hand, to enroll in those academic societies which, constituted in German universities, for example, oblige their members to give satisfaction, in other words to accept, if provoked, a d. to first blood. It is also forbidden to submit to the jury of honor to have it judge whether the d. should be held or not. In fact the Pontifical Commission for the interpretation of the CIC holds that even in that case the crime exists and the penalties are incurred (Pontifical Commission, 26 June 1947: AAS, 39 [1947], p. 374).

Nor can one challenge to a d. a false accuser, even if this is the only means of avoiding a death sentence, since in this case the conditions for legitimate defense do not obtain (v. DIFESA LEGITTIMA).

The sin is not only and exclusively that of the duellists, but all those who intervene in any manner whatsoever are also to be considered as cooperators in the sin (v. COOPERAZIONE). Such are the bearers of the challenge note, the seconds, the physicians, who by agreement remain nearby in order to be able to lend their services at once; the umpires, whoever makes available money, weapons, vehicles, a place; whoever stands guard, and even the mere spectators, inasmuch as this constitutes an encouragement for the duellists and an approval of the d.

Another form of cooperation is also the writing of books that advocate the lawfulness of the duel, reaffirming prejudices sull'onore. Questi libri, in quanto diretti contro i buoni costumi, sono ipso iure prohibiti (can. 1399).

As regards reparation, one is usually not obliged to provide any compensation for the damages caused by killing or wounding in a duel; with the provocation and with the acceptance of the provocation, the killing ceases to be an injustice against the person killed. If, on the other hand, the one who kills or wounds accepted the challenge only because he was compelled, the coercion ordinarily proceeds from the court of honor, which can be assimilated to one who gives the order, for all effects, including the compensation of damages.

CANON LAW

Its origin is perhaps to be sought in the so-called judgments of God (v.), which came into widespread use in the West in the 9th century. In the same period we find the first decisive affirmations of the Church against the duel; a canon of the Third Council of Valence (855) declares the one killed in a duel a suicide and orders the exclusion from the communion of the faithful of anyone who in a duel has killed or gravely wounded his opponent.

In the following century traces of the use of the duel are found also in trials held before ecclesiastical tribunals, which however, in disobedience to the orders of Rome, soon refused to admit it as a means of proof.

Judicial combat fell into disuse especially following the efforts of certain French sovereigns, beginning with Louis the Saint; but the chivalric duel continued and was ever more widely practiced, from the 15th century onward, at first in the form of the tournament and, later, in that form which, with the observance of certain rules, is still practiced in our own day (private duel).

As regards the prohibition and, correspondingly, the penalties, it is not always easy to distinguish when the intent is to strike a duel having today's characteristics or a tournament or a judicial combat. Although prohibitions of duels are found also in an earlier period, it is certain that at least in the Lateran Council of 1179 and in certain decretals of Alexander III and of Innocent III there are general prohibitions (cf. the relevant texts in CIC, c. 9, X, III, 50; cc. 1-2, X, V, 14); subsequently grave penalties were established by Julius II (const. Regis pacifici, 24 Feb. 1509, § 2) and by Leo X (const. Quam Deo, 23 July 1519). The bull Ea quae a praedecessaribus of Pius IV (13 Nov. 1559), which constitutes the discipline prior to the Council of Trent, imposed the latae sententiae excommunication, reserved to the Pontiff, for duellists, for seconds, for those who assist at the duel or who grant the ground for the encounter, as well as for those who in any way favor the duel itself.

The Council of Trent (sess. XXV, de reform., c. 19) adds to the aforesaid penalties the deprivation of ecclesiastical burial for those who have died in a duel.

After various other provisions of Gregory XIII (const. Ad tollendum, 5 Dec. 1582), of Clement VIII (const. Ilius vices, 17 Aug. 1592, §§ 1-7) and of Benedict XIV (const. Detestabilem, 10 Nov. 1752), Pius IX in the const. Apostolicae Sedis of 12 Oct. 1869 (§ 2, n. 3) somewhat mitigated the penalties.

The CIC (can. 2351), substantially accepting the discipline introduced by Pius IX, and implicitly abrogating (cf. can. 6 n. 5) the other provisions (some of which it was doubtful whether they were still in force or not), has established the latae sententiae excommunication, reserved simpliciter to the Holy See (v. PENALTY), for duellists who challenge to a duel or who accept the challenge, for all accomplices (v. COOPERATION IN CRIME), for voluntary spectators, and for those who permit it or in any case do not do what is in their power to prevent it; moreover the duellists and the seconds incur ipso facto the infamia iuris (v. INFAMY); and those who die in a duel or as a result of injuries sustained in a duel are deprived of ecclesiastical burial (v. ECCLESIASTICAL BURIAL), unless before dying they have given some sign of repentance (can. 1240 § 1 n. 4).

The penal laws of almost all States also punish the duel, but almost always with mild penalties. Thus the Italian Penal Code (arts. 394-401) provides for various offenses in the matter (some detailed provisions are omitted): a) challenge or acceptance thereof, if the duel does not take place: it is punished with a fine which currently ranges from 1,600 to 16,000 lire; the same penalty applies to the bearers of the challenge, if the duel takes place, whereas in the contrary case the minimum of the fine may fall to 1,067 lire; for one who challenges or accepts the challenge, the penalty is doubled, if he has been the unjust and determining cause of the act; b) use of arms in a duel is punished with imprisonment from 15 days to 6 months, or with a fine from 4,000 to 80,000 lire; if from the act there results to the opponent a grave or very grave personal injury, the penalty is imprisonment from 15 days to 2 years; if from the act death results, the penalty is imprisonment from 1 to 5 years; in every case the penalties are doubled for him who has been the unjust and determining cause of the act; c) the seconds, and the persons who have facilitated the duel, are punished with a fine from 4,000 to 80,000 lire; d) whoever publicly offends a person or makes him the object of public contempt, because he has not challenged or has not accepted the challenge or has not fought in a duel, is punished with imprisonment from 15 days to 6 months or with a fine from 4,000 to 80,000 lire; the same penalty applies to whoever, making a show of his contempt, incites others to a duel.

It should further be borne in mind that duellists and seconds are punished, rather than with the lesser penalties provided for the duel, with the penalties established for homicide or personal injury, whenever one of the following irregularities of which they are aware occurs: 1) if the conditions of the combat have not been previously established by seconds, or if the combat does not take place in their presence; 2) if the arms used in the combat are not equal, or are not either equally loaded pistols or swords or sabers, or if they are precision or repeating arms; 3) if in the choice of arms or in the combat fraud is committed or the established conditions are violated; 4) if it has been expressly agreed, or if it results from the nature of the duel, or from the distance between the combatants, or from the other established conditions, that one of the duellists was to remain killed; 5) when the provocation or the challenge to a duel has been made with the intent of extorting money or other advantage.