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bar to an indictment for fornication. x And so, in an indictment for abduction there may, by the English practice, be a conviction of assault. y

3 Dinkey v. Com. 5 Harris, 126. y R. v. Barratt, 9 C. & P. 387. See State v. Bierce, 27 Connect. 319.

839

CHAPTER XVI.

DUELLING.

I. DEFINITION, $ 2674.
II. PARTICULARS OF OFFENCE, S

2677.
1. THE COMBAT MUST BE PREMEDI-

TATED, § 2677.
2. DEADLY WEAPONS MUST BE IN-

TENDED, § 2678. 3. THE CHALLENGE MUST BE IN SATIS

FACTION OF HONOR SUPPOSED TO

BE WOUNDED, S 2679. 4. PROVOKING CHALLENGE INDICTA

BLE, § 2680. 5. NO DEFENCE THAT DUEL IS TO BE

FOUGHT EXTRA-TERRITORIALLY, $

2681.
III. INDICTMENT, $ 2682.
IV. EVIDENCE, S 2685.

I. DEFINITION.

$ 2674. A DUEL is a concerted fight between two persons, with deadly weapons, the object of which is the supposed 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 injuriae causa videtur damnum datum.” But this was because such contests were engaged in for public purposes and under public 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.

§ 2675. 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 a voluntary 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 same

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, ut cruenta corporum morte animarum etiam perniciem lucretur.” a Gradually this principle worked 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 ; al and, as has been already expressed, that killing in a duel is murder ; that all persons engaged in preparing for the duel, if assisting at the death, are principals ; if absent, accessaries before the fact. b

§ 2676. But this view, as has been seen, c it has been found impracticable to carry out into uniform practice, even in those cases 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.

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.

II. PARTICULARS OF OFFENCE.

1. The Combat must be premeditated. § 2677. We must here 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, construing them 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 cases of riotous homicide, or homicide in sudden quarrels. d And if no physical injuries ensue, the participants are indictable for affrays or attempts.

a Acta conc. Trid. 1562; Decret. reader, who seeks to examine the hisde reform. cap. XIX. This is but a tory of the law in this connection, will condensation of the old canon law. find materials in Quintus, Diss. de

al R. v. Langley, 2 Ld. Raymond, Duello, &c. Groning. 1830; Gneist, 1029 ; R. v. Phillips, 6 East, 464; R. v. der Zweikampf, 1848; Pujos, Essai sur Kirwan, 2 B. & A. 462; R. v. Young, la Repression du Duel, Paris, 1863; 8 C. & P. 644. See Smith v. State, 1 Sabine's Notes on Duels and DuelStew. 506 ; State v. Perkins, 6 Black. ling, 1860. 20.

c Ante, $ 990. b See ante, $ 990. The curious

2. Deadly Weapons must be intended.e $ 2678. Challenges to fight with weapons not deadly, e. g. with fists, are not under the duelling statutes, though indictable at common law as attempts, or as breaches of the public peace. f So, also, where the challenge is intended as a joke, or where the weapons meant to be used are intended by the challenging party to be harmless. g Yet if the principals intend 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. h Under this head falls what a German expositor i styles the “sog. 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. A challenge to a performance of this kind is a challenge under the duelling statutes. It is no matter in what terms the challenge be couched. If it is to invite a fight with deadly weapons, the case is covered by the statute, no matter how artful may be the disguise. j

3. The Challenge must be for Satisfaction to Honor alleged to be

wounded § 2679. Suppose, in a foundering boat, a passenger proposes that lots should be drawn as to who should be cast overboard, in order to lighten the boat? This would not be a challenge under the duelling statutes, but excusable at common law. k But the term “ honor,” even when used in statutes, must not be here construed too scantly. Wherever one man, except under legal ned Ante, $ 988-999.

h See post, “ Attempts," § 2688. e See Com. v. Tibbs, 1 Dana, 524. i Holzendorff's Encyc. II. 721. f Com. v. Whitehead, 2 Boston j Herriott v. State, 1 McMullen, 126; Law Rep. 148; State v. Farrier, 1 Ivey v. State, 12 Alab. 276; State e. Hawks, 487; State v. Taylor, 2 Brev. Perkins, 6 Blackf. 20; Com. v. Hart, 243. See Aulger v. People, 34 Ill. 6 J. J. Marshall, 121; Com. v. Tibbs, 486.

i Dana, 524; Com. v. Pope, 3 Dana, g Com. v. Hart, 6 J. J. Marshall, 418. 122.

k Ante, $ 1028.

cessity, challenges another to single combat with deadly weapons, to redress any injury, real or fancied, to self, there the case is met. Nor, for this purpose, need any set phrase be used. I 4. While only the Actors, who put the Challenge in Definite

Shape, are indictable under the Statutes, yet those who by Insults provoke a Challenge are indictable at Common Law.

§ 2680. Suppose a duellist, desiring himself to escape the penalties of the statutes, succeeds by skilful insults in provoking another to challenge him, is he to escape harmless ? 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 ; m 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. n

5. No Defence that Duel is to be fought extra-territorially.

§ 2681. Where a challenge is given in one state to fight a duel in another state, the offence of challenging is continuous, and may

I State v. Farrier, 1 Hawks, 487; purpose of provoking another to send State v. Taylor, 1 Tread. 107; 2 a challenge, where the tendency is Brev. 243, and cases cited in last sec- direct and manifest, is equally indicttion.

able, even though the provocation m Com. v. Tibbs, 1 Dana, 524. should fail in its object. And no pre

n Post, $ 2691 ; 1 Gabbett Crim. vious misconduct on the part of the Law, 66; Hawk. P. C. § 18, 19; 1 individual challenged or provoked will Deacon Crim. Law, 219; Boothby form a defence against such indictCrim. Law (ed. 1854), 60. See R. ment, so as to entitle the defendant v. Rice, 3 East, 581; R. v. Phillips, 6 to an acquittal, although it will weigh East, 464; State v. Taylor, 1 Constitue with the court in determining the sentional Reps. 107; R. v. Cuddy, 1 Car- tence. Where, indeed, a party chalrington & Kirwan, 210; R. v. Young, lenged applies to the court of queen's 8 Carrington & Payne, 103; State v. bench for a criminal information, Farrier, 2 Hawks, 487.

that extraordinary remedy will not be Challenges to break the peace by granted, if he shall appear to have fighting," says Mr. Talfourd, in his given provocation to his adversary, edition of “ Dickinson's Quarter Ses- but he will be left to indict at the sions (p. 325), “are indictable as assizes or session. The punishment, misdemeanors, as well in those who on conviction, is fine and imprisonsend, as those who knowingly carry ment, or both, at the discretion of the them. Upon the same principle, court.” employing words or writings for the

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