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The History of Duelling (Complete)

213 pages
Library of Alexandria
In the beginning of this work an account has been given of various traditional trials by combat and judicial ordeals, marked with a similar character of brutality and superstition to that which distinguished similar meetings in France and other countries; and it has also been observed, that it appears evident that personal combats were brought into vogue in England by the followers of William the Conqueror. But the barbarous practice of trial by battle was modified in our island by various circumstances, and was chiefly applied to three special cases—The decision of causes in a military Court of Chivalry; Appeals of felony; and civil cases upon issue joined in a writ of right. This last ordeal, until the reign of Henry II, was the only mode of decision. 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.