Rapier v. court sword

In rec.sport.fencing on Fri, 10 Oct 2003 02:57:02 GMT
Mark C. Orton <ortonmc+rsf@erols.com> wrote:
> On Wed, 08 Oct 2003 19:42:10 GMT, Ken <cprstn54zz@att.net> wrote:
>
>> At least there is one other person -- far more knowledgeable than I am
>> -- who thinks that the rapier was the penultimate duelling weapon,
>> save for the handgun.
>
> What, then, would be the ultimate duelling weapon?
>

Depends on the duel.

The Wilhemite German duel was very focused on producing at least one dead
or seriously injured participant, such as if both miss in a pistol duel,
you walk towards each other and try again.

Or else you could do the early ITalian duel where one way to "win" was
to specify a massive list of armour and weapons, trying to find ones
your opponent couldn't match, so avoidin the duel altogether.

Zebee

Amy & Joseph Kormann <ajkormann@monmouth.com> nattered on
thusnews:borqrs$2tg$1@news.monmouth.com:

> William Black wrote:
>
>>And go straight to jail...
>>
>>
> Hmm. Maybe I should have clarified the 'duel' as being a single-touch
> combat with non-sharpened weapons.

Such a play at a "duel" imposes no danger to life and is no test of
courage at all. Do not rely upon a mere dictionary to dictate what is and
is not honor. All authorities on honor make it quite plain that it is
willingly facing death over honor that determines what is a duel and what
is a fencing bout. Check out Billacois's work on the subject.

Zebee Johnstone <zebee@zip.com.au> nattered on
thusnews:slrnbr2s8d.k0m.zebee@zeus.zipworld.com.au :

> Now, if you each put up say $1000, winner take all, then that has enough
> risk that it might be in the same ballpark as a duel with sharps.

Or at least it would in English tradition countries, where our culture
essentially equates money and blood.

On Sun, 09 Nov 2003 21:44:18 -0800, Jonathan Jefferies
<jonathanjefferies@alamedanet.net> wrote:

>Amy & Joseph Kormann wrote:
>
>>>
>>
>> I do wonder if there's laws on the books to prohibit people from
>> carrying about sharpened bladed objects (swords obviously). I recall one
>> story (urban legand?) about Congress trying to prohibit the sale of any
>> blade greater than 10 inches. Then they realized every household in
>> American with a butcher's knife would be in violation and that ended that.
>>
>Afraid so. And there are laws on most state law books forbidding
>dueling. As with most legal systems someone wants to control what
>others do.
>J.

That's actually something I've done a bit of research on. It's true
that some states[1] have anti-duelling laws[2]. However, if someone
was convicted of being involved in a duel, either as a principal or
second, the penalty was that the person could not run for public
office[3].

It's clear from the wording of the laws that they were talking about
real, life-and-death encounters, not mock combat with fencing blades.

Notes:
1. This applies to states in the American Deep South--Louisiana,
Alabama and suchlike. I didn't check other areas, so I can't comment
on what their laws might say.
2. Or *had* such laws, many were declared obsolete and removed in the
1970s.
3. Note that that's the penalty for *participating* if you injured or
killed someone then assault or murder charges might well apply.

-Chris Zakes
Texas

I came up here for a party, and what happens? Nothing! Not even
ice cream. The gods looked down and laughed. This would be a
better world for children if the parents had to eat the spinach.

-Groucho Marx, "Animal Crackers"

Chris Zakes <moondrgn@austin.rr.com> wrote


> 3. Note that that's the penalty for *participating* if you injured or
> killed someone then assault or murder charges might well apply.
>
> -Chris Zakes
> Texas


Yes, the practice would most likely be addressed through existing laws
not specific to the practice of duelling, homicide in the event of a
death, attempted murder or aggravated assault otherwise, and perhaps
throwing in various ancillary felonies such as conspiracy and
facilitation. My state's statutes do not even define the term "duel"
as such any more...

It makes for anomalous situations. For instance, I have always
wondered why deaths in boxing are not prosecuted as duels---indeed,
why matches are allowed at all. Is it only the minimal safety
precautions of gloves, cups and mouthpieces which makes the law treat
deaths as excusable? The lack of weapons?

In rec.sport.fencing on 12 Nov 2003 16:30:48 -0800
William Marshal <trebuchet30303@yahoo.com> wrote:
> It makes for anomalous situations. For instance, I have always
> wondered why deaths in boxing are not prosecuted as duels---indeed,
> why matches are allowed at all. Is it only the minimal safety
> precautions of gloves, cups and mouthpieces which makes the law treat
> deaths as excusable? The lack of weapons?

Dunno about the US, but in Oz, boxing matches are deemed sporting events
where there are rules designed to minimise serious injury, and as long
as those rules are followed, a death is considered death by misadventure.

There are coronial enquiries, and if the opponent was found to have
broken the rules, with such conduct contributing to the death, the
opponent would be charged.

The same applies to fencing, if a weapon breaks and someone dies of it,
then as long as the rules were followed - proper kit, in good nick,
inspected, and so on - then the verdict would be death by muisadventure.
If the dead person had not followed the rules, ditto. If the opponent
had been breaking the rules, excessive force, bodycontact, etc, then
if the coroner considered that might have contributed to the death,
the opponent would be charged.

If two guys went into a boxing ring without gloves, with no rules,
no rounds, and someone died, then I expect the survivor would get
charged with at least manslaughter. I expect the various Ultimate
Fighting Competitions have rules to try and at least give the illusion
of minimising the chance of serious injury.

Two bods fronting up in their shirtsleeves with sharps swords, it's a
lot harder to claim "we had precautions to avoid serious injury, it was
an accident".

Zebee

--
Zebee Johnstone (zebee@zip.com.au), proud holder of
aus.motorcycles Poser Permit #1.
"Motorcycles are like peanuts... who can stop at just one?"

Chris Zakes wrote:
> On Sun, 09 Nov 2003 21:44:18 -0800, Jonathan Jefferies
> <jonathanjefferies@alamedanet.net> wrote:
>
>>Afraid so. And there are laws on most state law books forbidding
>>dueling. As with most legal systems someone wants to control what
>>others do.
>>J.
>
>
> That's actually something I've done a bit of research on. It's true
> that some states[1] have anti-duelling laws[2]. However, if someone
> was convicted of being involved in a duel, either as a principal or
> second, the penalty was that the person could not run for public
> office[3].

My understanding, in at least one incident in the state of
California, police were unable to make a case of
homicide against one gang banger because the victim also had a
weapon and was trying to do unto the party of the first part.
So they charged said felon with dueling! So unless it was Arnie
I doubt the penalty was anything about political office.


> Notes:
> 1. This applies to states in the American Deep South--Louisiana,
> Alabama and suchlike. I didn't check other areas, so I can't comment
> on what their laws might say.
> 2. Or *had* such laws, many were declared obsolete and removed in the
> 1970s.
> 3. Note that that's the penalty for *participating* if you injured or
> killed someone then assault or murder charges might well apply.
>
> -Chris Zakes
> Texas

The old south continued to follow the romantic notions of honor and
dueling long after it died out in the rest of the US and indeed did
so thru the U.S. Civil war and perhaps in place such as New Orleans
afterwards. In the rest of the US being a bit more strait laced the
laws were interpreted or written differently.

J.

Zebee Johnstone <zebee@zip.com.au> wrote


>
> Two bods fronting up in their shirtsleeves with sharps swords, it's a
> lot harder to claim "we had precautions to avoid serious injury, it was
> an accident".
>
> Zebee

I don't see why. Duels traditionally had a doctor in attendance, the
various codes duello were heavy on rules, and if the object is only to
first blood or the like---but no, this would get all parties thrown in
jail, doctor included. So is the difference between this and boxing
that the latter is organized and large-scale, as opposed to singular
and ad hoc?

I believe there's a specific legal provision generally applied to
boxing deaths in the US, it isn't considered accidental but something
like excuseable manslaughter, a justifiable killing rather like
self-defense. It's almost never prosecuted.

In rec.sport.fencing on 13 Nov 2003 15:46:54 -0800
William Marshal <trebuchet30303@yahoo.com> wrote:
> Zebee Johnstone <zebee@zip.com.au> wrote
>
>
>>
>> Two bods fronting up in their shirtsleeves with sharps swords, it's a
>> lot harder to claim "we had precautions to avoid serious injury, it was
>> an accident".
>>
>> Zebee
>
> I don't see why. Duels traditionally had a doctor in attendance, the
> various codes duello were heavy on rules, and if the object is only to
> first blood or the like---but no, this would get all parties thrown in
> jail, doctor included. So is the difference between this and boxing
> that the latter is organized and large-scale, as opposed to singular
> and ad hoc?

In attendance is meaningless, the injury is the key.

"first blood" is apparently a myth, don't put a lot of reliance on it.

Plus, if you are doing a thing where the outcomes are very clearly going
to be fatal unless lucky, because of the gear used, you can claim first
blood, it's not likely to be believed.

Compare the Mensur, where there's a lot of precautions taken to prevent
death.


Boxing is fists, deaths are *rare*. It is clear that death would be
very unusual, whereas sharp swords would be the opposite.

Zebee

Zebee wrote:

> > Two bods fronting up in their shirtsleeves with sharps swords, it's a
> > lot harder to claim "we had precautions to avoid serious injury, it was
> > an accident".

"William Marshal" responded with:

> I don't see why. Duels traditionally had a doctor in attendance, the
> various codes duello were heavy on rules, and if the object is only to
> first blood or the like---but no, this would get all parties thrown in
> jail, doctor included. So is the difference between this and boxing
> that the latter is organized and large-scale, as opposed to singular
> and ad hoc?

The difference is a straightforward legal one -- the difference between the
use of force and the use of deadly force. If I hit you with my fist once as
hard as I can, you probably won't die. If I stab you once, you quite likely
will. Therefore attempting to stab you *at all* is defined by law as using
deadly force.

From Black's Law Dictionary, Sixth Edition, p. 645: Deadly force: Force
which the actor uses with the intent of causing or which he knows to create
a sustantial risk of causing death of serious bodily harm.

Jay Rudin

"Jay and Diane Rudin" <rudin@ev1.net> wrote


> The difference is a straightforward legal one -- the difference between the
> use of force and the use of deadly force.

Yet statutes which permit the one usually permit the other, ie
self-defense, defense of a third party against certain ennumerated
felonies, etc.



> If I hit you with my fist once as
> hard as I can, you probably won't die. If I stab you once, you quite likely
> will.

Neither of these, however, is so invariable as to constitute a rule.
People DO die from a single punch, and not just in the ring. And
people survive some truly ghastly stab and cut wounds and survive---a
reading of accounts from the age of duelling will confirm this all too
well...

On 12 Nov 2003 16:30:48 -0800, trebuchet30303@yahoo.com (William
Marshal) wrote:

>Chris Zakes <moondrgn@austin.rr.com> wrote
>
>
>> 3. Note that that's the penalty for *participating* if you injured or
>> killed someone then assault or murder charges might well apply.
>>
>> -Chris Zakes
>> Texas
>
>
>Yes, the practice would most likely be addressed through existing laws
>not specific to the practice of duelling, homicide in the event of a
>death, attempted murder or aggravated assault otherwise, and perhaps
>throwing in various ancillary felonies such as conspiracy and
>facilitation. My state's statutes do not even define the term "duel"
>as such any more...
>
>It makes for anomalous situations. For instance, I have always
>wondered why deaths in boxing are not prosecuted as duels---indeed,
>why matches are allowed at all. Is it only the minimal safety
>precautions of gloves, cups and mouthpieces which makes the law treat
>deaths as excusable? The lack of weapons?

Pure speculation here, becauseboxing laws aren't an area I've studied,
but...

Boxing is considered a "sporting event". The objective isn't to prove
a point of honor, or settle a dispute, as it would be in a duel. Also,
the "victory conditions" in boxing don't require the death or injury
of the other fighter. If race car driver A is killed because driver B
caused a wreck, do they prosecute B for manslaughter? Or even for
reckless driving? As Zebee put it, it's "death by misadventure" or in
American, "**** happens."

In the Middle Ages and Renaissance, duels were sometimes used as part
of the judicial process--the King or other ruling noble would "grant a
field" to settle an issue that couldn't be resolved by normal legal
procedures. These duels were done in public under the eye of the
King/ruling noble. In the mid-to-late 1500s "granting the field"
became less common and eventually stopped altogether; that's when you
started seeing the informal "meet me behind the Luxembourg at 1:00"
duels which persisted into the early part of the last century.

-Chris Zakes
Texas

I came up here for a party, and what happens? Nothing! Not even
ice cream. The gods looked down and laughed. This would be a
better world for children if the parents had to eat the spinach.

-Groucho Marx, "Animal Crackers"

On Thu, 13 Nov 2003 00:56:01 -0800, Jonathan Jefferies
<jonathanjefferies@alamedanet.net> wrote:

>
>
>Chris Zakes wrote:
>> On Sun, 09 Nov 2003 21:44:18 -0800, Jonathan Jefferies
>> <jonathanjefferies@alamedanet.net> wrote:
>>
>>>Afraid so. And there are laws on most state law books forbidding
>>>dueling. As with most legal systems someone wants to control what
>>>others do.
>>>J.
>>
>>
>> That's actually something I've done a bit of research on. It's true
>> that some states[1] have anti-duelling laws[2]. However, if someone
>> was convicted of being involved in a duel, either as a principal or
>> second, the penalty was that the person could not run for public
>> office[3].
>
>My understanding, in at least one incident in the state of
>California, police were unable to make a case of
>homicide against one gang banger because the victim also had a
>weapon and was trying to do unto the party of the first part.
>So they charged said felon with dueling! So unless it was Arnie
>I doubt the penalty was anything about political office.

No offense, but that sounds pretty unlikely. This can't be the first
shootout they've had to deal with in California, after all.


>> Notes:
>> 1. This applies to states in the American Deep South--Louisiana,
>> Alabama and suchlike. I didn't check other areas, so I can't comment
>> on what their laws might say.
>> 2. Or *had* such laws, many were declared obsolete and removed in the
>> 1970s.
>> 3. Note that that's the penalty for *participating* if you injured or
>> killed someone then assault or murder charges might well apply.
>>
>> -Chris Zakes
>> Texas
>
>The old south continued to follow the romantic notions of honor and
>dueling long after it died out in the rest of the US and indeed did
>so thru the U.S. Civil war and perhaps in place such as New Orleans
>afterwards. In the rest of the US being a bit more strait laced the
>laws were interpreted or written differently.
>
>J.

All the laws I looked at dated from just after the Civil War. They
also included provisions mandating segregated schools, forbidding
interracial marriages, etc. But as I said, most of them were replaced
in the 1970s.

-Chris Zakes
Texas

I came up here for a party, and what happens? Nothing! Not even
ice cream. The gods looked down and laughed. This would be a
better world for children if the parents had to eat the spinach.

-Groucho Marx, "Animal Crackers"

In rec.sport.fencing on 14 Nov 2003 12:53:25 -0800
William Marshal <trebuchet30303@yahoo.com> wrote:
> "Jay and Diane Rudin" <rudin@ev1.net> wrote
>
>
>> The difference is a straightforward legal one -- the difference between the
>> use of force and the use of deadly force.
>
> Yet statutes which permit the one usually permit the other, ie
> self-defense, defense of a third party against certain ennumerated
> felonies, etc.

YUp, because one rule to bind them all is a literary fiction.

If you are attacked and your attacker can use the defence of
provocation, that's different to you being attacked and having done
nothing to provoke it. Self defence is a special case, and scruitinsed
carefully.

>> If I hit you with my fist once as
>> hard as I can, you probably won't die. If I stab you once, you quite likely
>> will.
>
> Neither of these, however, is so invariable as to constitute a rule.

Nothing in law is.

FOr example, if you run a red light, you are always in the wrong, no?

No.

If you are the one with the green light, which turns green while you are
stopped, and you take off without checking, you may be deemed to have
contributed to the crash.

NOthing in law is invariable, that's why there are courts.

If you want simple inviolable laws, stick to macro level physics.

Zebee

"William Marshal" responded to me:

JR> The difference is a straightforward legal one -- the difference
JR> between the use of force and the use of deadly force.

> Yet statutes which permit the one usually permit the other, ie
> self-defense, defense of a third party against certain ennumerated
> felonies, etc.

Simply untrue. The reason the distinction is made is so that the law can
distinguish between when force is legal from when deadly force is legal. If
somebody pushes me, I can legally retaliate with force (pushing back), but
not with deadly force.

JR> If I hit you with my fist once as hard as I can, you probably won't
JR> die. If I stab you once, you quite likely will.

> Neither of these, however, is so invariable as to constitute a rule.
> People DO die from a single punch, and not just in the ring. And
> people survive some truly ghastly stab and cut wounds and survive---a
> reading of accounts from the age of duelling will confirm this all too
> well...

It is true that judgment is required to apply legal definitions, which is
why these questions are dealt with before a judge.

Question: are you disagreeing with Black's Law Dictionary, or claiming that
I have misapplied the definition? Deadly force is indeed defined as "Force
which the actor uses with the intent of causing or which he knows to create
a subtantial risk of causing death of serious bodily harm." A fistfight is
not considered to "create a substantial risk of causing death", and a sword
is.

Jay Rudin

"Chris Zakes" <moondrgn@austin.rr.com> wrote in message
news:hqiarvkkpre0ahne933cn95cbinrpcqdfv@4ax.com...

> In the Middle Ages and Renaissance, duels were sometimes used as part
> of the judicial process--the King or other ruling noble would "grant a
> field" to settle an issue that couldn't be resolved by normal legal
> procedures.

Erm no, that's actually the whole point.

A duel is NOT 'trial by combat' as only gentlemen may take part and it is
only about the gentlemens' honour, no crime is ever mentioned. You fight
because you have been insulted or 'wronged'.

--
William Black
------------------
On time, on budget, or works;
Pick any two from three

In rec.sport.fencing on Sun, 16 Nov 2003 20:24:52 +0000 (UTC)
William Black <black_william@hotmail.com> wrote:
>
> "Chris Zakes" <moondrgn@austin.rr.com> wrote in message
> news:hqiarvkkpre0ahne933cn95cbinrpcqdfv@4ax.com...
>
>> In the Middle Ages and Renaissance, duels were sometimes used as part
>> of the judicial process--the King or other ruling noble would "grant a
>> field" to settle an issue that couldn't be resolved by normal legal
>> procedures.
>
> Erm no, that's actually the whole point.
>
> A duel is NOT 'trial by combat' as only gentlemen may take part and it is
> only about the gentlemens' honour, no crime is ever mentioned. You fight
> because you have been insulted or 'wronged'.

There were "judicial duels" in Germany, although I am not sure of the
actual German words.

Nothing is every clear cut - there were fights over honour that looked
exactly like fights to determine ownership of property, and ones that
were both. The fight between two familes - 6 a side, only 2 of 12 lived
- mentioned by Brantome for example. That was over a loan of a small
amount of money, but also about family honour.

I think it's difficult to make hard and fast lines - especially over
single words - concerning things that occurred over several hundred
years in different countries. Once you start getting translation issues
and cultural issues (what is "honour"?) then it's way too complex to
be dogmatic.

Most people seem to see "duel" and think "very formalised, and to first
blood" which was a very small subset of duels. very small.

Zebee

Zebee Johnstone <zebee@zip.com.au> wrote


> If you are attacked and your attacker can use the defence of
> provocation, that's different to you being attacked and having done
> nothing to provoke it. Self defence is a special case, and scruitinsed
> carefully.


It seems not to be THAT special. The justification statutes in my
state also permit the use of either physical force OR deadly physical
force, which ever is necessary, in order to defend a third person, in
defense of premises, in law enforcement, and in preventing certain
ennumerated felonies, ie arson of an occupied structure, kidnapping,
rape, armed robbery---even sexual conduct with a minor...

"Jay and Diane Rudin" <rudin@ev1.net> wrote

> The reason the distinction is made is so that the law can
> distinguish between when force is legal from when deadly force is legal. If
> somebody pushes me, I can legally retaliate with force (pushing back), but
> not with deadly force.

See my answer to Zebee, above. The law seems to permit its use for in
some fairly nonexigent circumstances. The justification statutes in my
state begin, in most cases, thus:

"A person is justified in threatening or using both physical force and
deadly physical force against another if and to the extent the person
reasonably believes that [either one] is immediately necessary to---"

Doesn't sound "simply untrue" to me.

And---if you "retaliate with force" and the receipient falls and
cracks his skull open and dies, you HAVE in effect used deadly force.
Homicide on a sudden affray may be excused generally, but it's still
homicide, no?






> It is true that judgment is required to apply legal definitions, which is
> why these questions are dealt with before a judge.

To be sure. Howsoever, the statutes themselves are so written as to
ensure that a number of cases never get to the charging phase, much
less come before a court. If ones actions are justified by the
statutes, it is pointless to try the person anyway, is it not?



> Question: are you disagreeing with Black's Law Dictionary, or claiming that
> I have misapplied the definition?

Neither. What did I say that led you so to believe?

I will mention that no state, as far as I am aware, uses Blacks to
define its terms, but rather they go to great lengths to define them
in the statutes themselves ( though they may amount to the same thing
in different words ). I'm not really sure wherefore the reference to
Black's definition in the first place...





> A fistfight is
> not considered to "create a substantial risk of causing death", and a sword
> is.

Considered by whom? And under what circumstances? A professional
heavyweight fighter is IMO a lot more likely to kill someone in a
fistfight than an amateur with a sword, for instance. I just wonder
why the law has decided differently, and what their ruling assumptions
are. And more importantly why, for instance, actual deaths from
fistfights or boxing matches are constructively condoned, while
hypothetical deaths from duels with words are presumed to be somehow
much worse ( should one ever somehow manage to occur ).

Chris Zakes <moondrgn@austin.rr.com> wrote


> Boxing is considered a "sporting event".

Sure. But WHY, exactly, is it so considered? How did it manage to
acquire exempt status, when it is so violent? Two men trying to hurt
each other in circumstance A is mala in se, but in circumstance B it's
"a sport", "the sweet science", a big money activity and widely
considered innocuous. I just don't get it. The intent to cause harm is
certainly there.

Is it JUST the weapons? Then why aren't fencing or kendo or paintball
prohibited? And if boxing is just a sport, why are other, more extreme
forms of "sport" hand-to-hand combat are frowned upon?


> The objective isn't to prove
> a point of honor, or settle a dispute, as it would be in a duel.

No; it's to make money, or to win a trophy. Much more noble, I
daresay.



> the "victory conditions" in boxing don't require the death or injury
> of the other fighter.

Death, no. But injury? Absolutely. Even if it's only bruises and
microconcussions, no one comes out of a boxing match uninjured. A lot
of the time it's much worse, for victor as well as vanquished.



> If race car driver A is killed because driver B
> caused a wreck, do they prosecute B for manslaughter? Or even for
> reckless driving? As Zebee put it, it's "death by misadventure" or in
> American, "**** happens."

But racing does not have the specific objective of inflicting
punishment upon other contestants as THE primary motive of the sport.
I understand why the law doesn't consider every form of competition to
be a duel, just not why it distinguishes so finely between two which
involve combat...