New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1891-02-08

tIuIe, ana, II 10 snow that eels may 60 w
customed to being skinned alive. tribe OF pro-
fcssional champions grew up. whose business IL
was 10 put their nccs at hazard for hire in any
bodvs interest. Al one time, in England or
Scotland. or the border between the two, the
normal embarrassments Of the judicial duel were
increased by the addition Of a condition to the
effect that the life not of the champion alone, but
of his employer. should be dependent upon his
success in the encounter: provision which must
surely have had a tendency TO check litigation.
and beyond any doubt must have arrayed against
the institution the whole influence and weight OF
the lawyers of the period. Mr.. Nelson, being
member of the Scottish bar himself. naturally re-
trains from pressing his researches in this dlrec-
,ion. but it is a perfectly safe assumption that
sc]fnterest had much to do with the steady en-
tension of the civil law and the corresponding
obsocscencc of the wager of battle
Mr.. Nelson holds that the judicial duel would
have gone out OF use altogether nut Tor the rise
of chvalry, which restored it temporarily. Ii
is not always easy sometimes not possible, To dis
tinguish between the judicial and the private
duel. and while Mr.. Nelson is generally careful
and accurate he sometimes falls into error. Thus
be appears 10 consider the duel between Jarnac
and La Chataigncraye as merely a licensed duel
II was really judicial duel in due form' as Bran
tonne. who was the uncle of the vanquishcd victim
Of the Coup de Jarnac." could have informed
him. He does not. however, appear to nave
looked into Brantomes Dscours sur les Duels,
for he refers to the Encyclopaedia Britannica
article "Duels" rs his chief authority in the
premises Nor does Mr. Nelson srem to be aware
that Mr. Charles Henry Lea treated the whole
subject some twenty years ago in an almost eN-
haustive manner. in his work entitled Super
10 iuHp N
scholarly work illustrate his argument by details
Of historical examples, and herein consists the nam
difference between the American and the Scotch
authors Mr. Nelson has been at great pains.
moreover, to illustrate the annals of his own
country and considering the mcagrcneaS OF the
material available. has succeeded beyond reason
able expectation in this. lie has also enlivened
his disquisition with great number Of narratives.
some authentic beyond question. and others doubt
ful if not clearly fictitious. There arises from
the mass of matter thus brought together strong
impression OF the fcrocty Of the manners which
prevailed throughout Europe until a comparatively
recent period. and n clear perception OF the as
tinctions between the judicial duel as practscd
in the courts and the wager of battle ms conducted
in accordance with the rules Of chlvalry
II is easy to see why the common people favored
the abolition of the judicial combat ana the SUD
of compurgation or the jury system lor
the institution pressed most hardly upon them'
and often il practically worked denial OF justice
In the iudcial duel the combatants could not wear
ormor They must be dressed in whit leather
alone. and have their heads STRAIGHTFORWARD for
what reason Mr. Nelson has failed to explain.
He is only confident that il was not TO deprive
the adversary Of a good hand-hold, but we do not
pcrccive the justification for his certainty on this
point. The suggestion that the practice had n re
ligious significance may he pertinent, hut no evil
dence in support Of it is offered The weapons
used in these ducls were batOns Of wood tipped
with horn or iron, and sometimes shields were
carried detailed account Of one such battle
given by Mr. Nelson shows That every KIND oI
fighting was permitted. and that
the combatants were accustomed TO use Their teeth
freely in the close contest which usually formed
the last stage Of the duel The employment OF
professional approvers did much 10 hasten the
abolition of these combatS, for it speedily APP
pcarcd that the approvcrs were commonly vcnal
scoundrcls. who lived by perjury and fraud, and
they became as unpopular as inforncrs and tithe-
proctors in Ireland. As to the wager Of battle as
practiscd by men Of noble birth. il was entirely
different In this case the corbatants fought in
complete armor, with spear, sword and dagger,
and frequently. though not always, on horseback.
The vanquished in such encounters, moreover,
were rot necessarily put 10 death. though The
victor had a right To exact the life OF his fallen
adversary Chivalry did much to restore and
maintain this form of duel, but the fifteenth cen
tury witnessed the decay OF the custom all over
Europe, and the radical changes in military
science especially the introduction Of gunpowdcr,
contributed TO the abolition of the ancient prac-
tice which was succeeded by the ancient duel.
Mr. Nelson has furnished many striking Illus
trations Of the wager of battle. and perhaps the
most interesting OF all is the account 81 the COM
bat between thirty men each of the Clans Chaltan
and Kay, which historical event Sir Walter Scott
has made splendid use Of in The Fair Maid OF
Perth One is surprised. indeed, 10 ind how
closely he adhered to the actual facts Of the great
and dreadful slaughter" on the Inch Of Perth
enough, the cause Of the quarrel be-
tween the two clans which was thus fought out
by their respective champions is no longer known.
The Church OstensIbly opposed the wager of
battle, but eccesiastics themselves often fought
in the lists that papal bulls were Illuminated
against clerical combativencss, and without avail
The practice in fact survived until the advance Of
civilization created n public opinion which
demned il, and then only was it abandoned. The
private duel Of course long antedatcd the judicial
duel and continued side by side with it. This
form, too is now almost extinct. and can hardly
survive the century. The judicial duel died hard.
According to Mr. Lea, it was still a lawful form
Of appeal in murder cases 50 recently as 1887 in
more than one State Of the Union. and perhaps
the last case of the kind occurred in New-Ilsml,-
shire at the close OF the eighteenth century.
Professor Woodrow Wilson. Of Princeton. the author
of Congressional Government Is writing "A history