Properties of Blood I.7: Dueling for Honor, Part C

I have some work to do on the conclusion of Chapter 6--a discussion of Faulkner's "An Odor of Verbena" delayed because I can't see to find my copy of the book.  I am therefore moving forward with Chapter 7.

From Judicial Combat to the Private Duel

It took many centuries for Germans to begin to accept some of the more humane traditions of Roman law, which would, in any event, be interpreted by kings and their courtiers as justification for ever expanding the royal prerogative and diminishing the primitive liberties of their subjects. Judicial combat, while a far cry from a legal right to personal vengeance, did serve to sustain the notion of personal responsibility in ages when the power of the king was steadily encroaching upon the right of the freeman.  The custom was eventually so regulated and circumscribed that gentlemen preferred to settle their disagreements without the presence of a king's representative, but it endured in English Law down to the 19th century as a remedy available to a man acquitted of murder and retried upon appeal by the victim's next-of-kin.

The rulers of western Europe did their best to curb the practice of judicial combat, but it was risky business to interfere in an institution so deeply rooted in chivalry.  In Richard II Shakespeare depicts the treason duel between Thomas Mowbray, Duke of Norfolk, and the King's cousin, Henry Bolingbroke, Duke of Hereford.  Bolinbroke formally accused Mowbray of squandering the soldiers' pay, given to him by the King, on "lewd employments" and of being the "head and spring" of all the treasonous plots against King Richard, though there were more personal motives for the quarrel: Mowbray had plotted against the life of Richard's (and thus Bolinbroke's uncle, the Duke of Gloucester.)  Mowbray responded with defiance:

My name is Thomas Mowbray, Duke of Norfolk;

Who hither come engaged by my oath--

Which God defend a knight should violate!--

Both to defend my loyalty and truth

To God, my king and my succeeding issue,

Against the Duke of Hereford that appeals me

And, by the grace of God and this mine arm,

To prove him, in defending of myself,

A traitor to my God, my king, and me:

And as I truly fight, defend me heaven!

[Richard II, Act I scene 3

The offended duke may or may not have been involved in the plot to kill Gloucester, who died, it is true, in his custody, but the death certainly served Richard's interest, since Gloucester was the leader of the lords who opposed Richard's high-handed policies.  If Gloucester had been killed on Richard's orders, the King would have had good reason to defend Mowbray and suspect the motives of his ambitious cousin, who had in fact supported Gloucester.  At the last minute, the King suspended the duel by exiling both.  If Bolingbroke had been loyal before, Richard’s decision not to permit the duel sparked Bolingbroke’s rebellion.  The results were catastrophic: Richard was deposed and murdered, England was embroiled in the 100 Years War and the Wars of the Roses, and the evil Henry VII established the Tudor Dynasty, the most oppressive in the history of England.

Judicial combats and duels may be barbaric, but there are worse evils, such as civil wars, blood feuds, and the affrays and free-for-all duels in which bullies too frequently prevailed against their harmless victims.  Sir Walter Scott, who is commonly and inaccurately blamed as a proponent of violence based on honor, regarded dueling as a step down in civility from judicial combat.  In his “Essay on Chivalry,” Scott blames the unwholesome influence of Italy for the decline: “Duels… were no longer fought in the lists, or in presence of judges of the field, but in lonely and sequestered places.  Inequality of arms was not regarded, however great the superiority on one side. "

Judicial combat is a far cry from the right to personal vengeance, but it did serve to sustain the notion of personal responsibility in ages when the power of the king was steadily encroaching upon the right of the freeman.  The custom was was eventually so regulated and circumscribed that some gentlemen preferred to settle their disagreements without the presence of a king's representative, but it endured in English Law down to the 19th century as a remedy available to a man acquitted of murder.  In the so-called “appeal of death” (also known as “appeal of murder”  someone tried and acquitted on a charge of murder could be retried upon appeal by the victim's next-of-kin.  The trial, however, could be a trial by combat.  As quaint or barbaric as this procedure might seem, it had one striking advantage over more abstract legal processes:  It acknowledged the loss to family and preserved some vestige of the old understanding that blood-revenge had not been eliminated but only that its administration had been entrusted to the kingdom or commonwealth.

That appeal for death was still taken seriously in the 18th century is shown by the strange effort of the English Parliament to eliminate it in America.  In order to retaliate against Massachusetts for the Boston Tea Party, the British parliament in 1774 passed a bill "for the improved administration of justice in the Massachusetts Bay Colony."  As originally passed the bill included a provision outlawing both appeal of death and trial by combat.  The Whig opposition to the government objected to these measures.  Burke spoke against them, but the leading voice as that of John Dunning, already eminent as a lawyer and as an opponent of George III’s personal rule.  Dunning had denounced General Warrants (similar to the latter-day John Doe warrants that permit the police broader powers of search and seizure than was admitted in the Common Law), and he would  propose the motion (in 1780) that "the influence of the crown has increased, is increasing, and ought to be diminished.”.

As Philadelphia historian Henry Lea tells the story, "The learned and eloquent Dunning, afterwards Lord Ashburton, one of the leaders of the opposition, defended the ancient custom in the strongest terms: 'I rise,' said he, 'to support that great pillar of the constitution, the appeal for murder; I fear there is a wish to establish a precedent for taking it away in England as well as in the colonies.  It is called a remnant of barbarism and gothicism. The whole of our constitution, for aught I know, is gothic....I wish, sir, that gentlemen would be a little more cautious, and consider that the yoke they are framing for the despised colonists may be tied around our own necks."

Dunning and Burke succeeded in having the obnoxious clause removed, and appeal for murder and trial by combat were both used again in 1818 in Ashford v. Thornton.  Thornton, acquitted once of the charge of murdering a young girl, was to be tried again upon the appeal of the victim's brother, but when the defendant demanded trial by combat, the brother dropped the appeal, and Thornton went where all bold men—bad as well as good—used to go, to the United States, which in those days guaranteed men the right to bear arms in their own defense. Appeal for death (and the consequent trial by combat) persisted even longer in some of the American states and was, in theory at least, valid in South Carolina in the 1830’s.

Judicial combat was a relic of chivalry that would have appealed most to military officers who never quite lost the sense of honor that demands personal satisfaction for an imputation of cowardice or treason.  Although it was generally displaced by the duel in the course of the 16th century, interest in the tradition never died out entirely.  Among the relics possessed by the British Admiralty is the curious manuscript collection known as the Black Book of the Admiralty, which includes an elaborate Anglo-Norman treatise on the judicial duel.  Although it is now a truism of scholarship to assert a clear distinction between the judicial and the private duel, the line of demarcation was not always so clear among the officer classes that altered but did not abandon a privilege that had been taken away by the Crown.

Some have attributed the American fashion for dueling to the influence of French officers in the War for Independence.  This may be true, so far as the fashion and the formalities go:  France was certainly famous for its obsession with dueling; however, the Irish of that time were even more celebrated for dueling than the French (the famous Code Duello is an Irish production), and the English officer caste had never renounced the privilege of fighting duels for the sake of honor--or even sport.