21. CHAP. XIX. Of a several Conflict or Combat between twain hand to hand.
CHAP. XIX. Of a several Conflict or Combat between twain hand to hand.
N ow let us see whether it be lawful to fight a Combat. They commonly call the same Duellum, that is, a Combat between twain:
Not because this word doth properly signify that thing. For Duellum properly signifieth every fight, because therein two parts do contend. But I, to the intent that this treatise may be the plainer, will call μονομαχίαν, that is, where one fighteth with one, Duellum, a Combat. David (say they) fought a Combat hand to hand, therefore it is lawful. And the fathers when they wrote upon that place, made some note of that matter. Howbeit the Canonical laws utterly condemn it. And the latter sort of Lawyers, when they treat thereof say, that the thing itself doubtless is naught, but yet for as much as it is suffered among Princes, therefore they say that they give
Counsel how the same must be used. As if there should be a disputation of whoredom, all men would straightway grant that the same is wicked and damnable: but because it is suffered in many commonwealths, they would admonish with what moderation it should be used. Many say that it is lawful to fight a Combat, as if sentence of death be given against an
innocent with this exception: to wit, unless he will fight a Combat. The selfsame thing they think to be lawful, if that suites in law of civil and criminal things cannot otherwise be ended. They say that examples be extant of Christian Princes, who not only permitted this, but also they themselves after this manner contended. And they add that this kind of fight hath some show of a lot. And seeing lots are permitted, as we have largely before declared, this also by the self-same right may be permitted. Lastly they say, that this is no less lawful than war: But war may lawfully be made: therefore also a Combat. Before I come to the matter itself, it behooveth to show that there is a great difference between a Combat and war. For in war men encounter with great forces, yea sometime with all their strength: but in this cause the trial of the whole matter is permitted only unto two. And although More and Less (as they say,) do not change the kind, yet be there here great differences. And further, we must consider, that there is a great difference between a Combat and that defense, whereby they say it is lawful to repel violence by violence. Because he that is so invaded by a Cutthroat or thief, although he be a private man, yet is he sufficiently armed by the commonwealth, only for defending of himself and not for killing. For he that is in that place cannot always call for the Magistrates help. But here they meet together by appointment, and the one is fully minded to kill the other. Moreover these conflicts are taken in hand, either by private appointment, or else by permission of the Magistrate. Nevertheless that is altogether condemned. For it is written: Thou shalt not kill. But this if the Magistrate permit, there seemeth to be in it a certain kind of justice.
Howbeit we ought to know, that we must not obey the Magistrate, if either he command or permit those things that be unjust and repugnant to the word of God. In deed we must obey the Magistrate, but yet Usque ad Aras, [that
is, with a safe conscience towards God.] And seeing such kind of fight is a human action, that must be observed therein, which is observed in other
Actions: That is, unto what end the same is taken in hand. And the end of every action hath a respect either of justice, or injustice: either of goodness, or naughtiness. Wherefore let us take reasons first from the word of God, secondly from good laws, and lastly from the end. Now let us enter into the matter itself.
2. The final causes why some think that combat should be permitted, be diverse and manifold, set forth here and there among many sorts of authors, both Lawyers and Canonists, and Schoolmen. First they say it is lawful, because they say it is instead of proof of a hidden thing, that it may appear some man hath right and is an innocent. For when there appear neither witnesses nor evidence, the uttermost is to try the matter by battle. And among the Lawyers this kind of trial is called vulgar, as in the Decretals De
Purgatione vulgari, and in the same place De Clericis Duello certantibus, and in the Decrees, 2nd Cause, quest. 5, in the chapter Consulvistes, and in the chapter Monomachia. It is also called vulgare, because it is only of the common sort of men, and hath not any strength either by right or by laws.
Wherefore this kind of proof is deceitful and uncertain. It is not lawful to abuse the creatures of God. But these men abuse them: seeing they lay hold of that for a Testimony, which was not instituted to that use. And that doth the end oftentimes declare: whereas the juster part is often vanquished. For this seemeth to be the order of nature, that the more strong and skillful, not the more innocent, should have the victory. And in the Decretals De
Purgatione vulgari, in the Chapter Significantibus, there is a case described: namely that there were two men, of whom one accused the other of theft, and that they fighting together a Combat for trial of the cause, the juster
man was slain: For the theft was found with the other. But that which is every man's right may be tried if thou wilt ask counsel of the holy
Scriptures. Either it may be proved by witnesses, as when it is said, In the mouth of two or three witnesses shall every word stand. Or by writings, as in the 32nd of Jeremiah, when a near kinsman would redeem lands, there were books written and sealed. Or by public confession: therefore Joshua commanded a wicked man openly to confess his wickedness, and to give the glory unto God. Or by an oath, and therefore in Exodus, if one had lent his garment to another, and that the same afterward had been stolen, it behooved him to whom it was lent, to confirm by an oath that he took it not away. And in the 6th chapter to the Hebrews, that an oath is the end of every controversy. But that suits in law should be finished by Combat, it is nowhere read in the holy Scriptures. Wherefore they which fight after that manner, do it not of faith: And whatsoever is not of faith, is sin. Neither is it to be doubted but that it is the will of them both that one would kill the other. But yet of necessity the one of the two must be innocent. So that they that defend these things will that an innocent man shall be slain. Besides, what else is this but to tempt God? For if the matter may be found out by no tokens, and that God hath reserved the same wholly unto himself, it must needs be an intolerable importunity, to go about to seek out the same. But if all just means being attempted, the Magistrate can understand nothing of the fact, he must absolve the man accused, and not commit him to a hazarded conflict. Moreover the Magistrate which suffereth these things to be done seemeth to seek a miracle which in old time was done in glowing hot iron and scalding hot water. For in the Decretals De Probatione vulgari, the last Chapter, it is written that the manner in Livonia was, that if a crime might not be proved by just Arguments, and that the person accused cried
out that he was innocent, he for trial of himself, should tread with his feet upon hot Iron, or else dip his hands in hot scalding water. Yea and to this very use, or rather abuse were they wont sometime to apply the Eucharist with this form of words: The body of our Lord Jesus Christ be unto thee for a trial. It seemeth that the same was a certain ill imitation of the water of jealousy which is described in the 5th chapter of Numbers. But of this profanation and abuse of the Eucharist, they had not one word of God in that place. Neither were the Sacraments instituted unto that end that they should decide controversies at law: they be testimonies of the heavenly doctrine and of the Gospel, and they be signets and seals of the promises of God. Wherefore they should not so rashly have been laid open to the finishing of Civil controversies. Further, let there be as much heed taken as there can, that the weapons on both sides may be alike, and that no man help any party, yet can it not be provided, but that the one shall be weaker than the other. And it is injury that the weaker should be coupled with him that is the stronger: Whereupon some of the fathers called this an invention of the devil.
3. Another cause why men will fight after this manner is for the ostentation of strength and force. For there be certain Thrasoes, which if they see themselves at any time contemned, do straightways challenge the Combat: But that madness must in no wise be suffered. Yea and Panormitanus de Torneamentis, in the Chapter Foelicis, saith that all games, wherein, either the life of man, or the safety of souls is jeoparded, must be utterly taken away, because they are repugnant to the word of God.
Neither did he alone judge thus, but the Civil laws also. In the Code De Gladiatoribus, it is the law of Constant. In civil quietness and domestical peace, bloody shows do not delight. But the Combat whereof we speak, is
in a manner a fighting with swords. And Leo, and Anthemius in the Title De Ferijs, in the law Dies Festos, decree that dolorous sights of wild beasts should be taken away. And those sights were, that men should be committed to Bears or Lions. In the Digests: Ad legem Aquiliam, in the law Nam
Judus, it is thus written: A sport that is hurtful is worthy of blame. And in the Proem of the Digests, in Paragraph, Illud vero: Who will call those
Games, whereby great offenses do arise? It is an abuse of the word, for they ought rather to be called by any name than Games. And in the Authentics, in the Title Ut omnes pareant Judicibus prouinciarum, Paragraph the first,
Justinian saith, that fortitude or manly courage without justice is not praise worthy. And he addeth: that he calleth it by the name of Fortitude in his own country speech. For the Romans called that Fortitude, which is joined with virtue. But contrariwise in the Code De Athletis: there is a law of Alexander Mammaea, that those which had thrice vanquished in sacred conflicts, and had been lawfully crowned, should afterward have immunity.
And Ad Aquiliam, in the law, Qua Actione, Paragraph, Si quis: It is decreed that if Pancratiastes had slain his adversary, the law Aquilia should cease.
And there is extant a letter of Frederick the second, which seemeth to agree herewith. And first touching that which concerneth runners and wrestlers, we condemn not all exercises, whereby either health or strength may be exercised: But and if any perhaps be slain amongst them, that happeneth by chance and seldom, and besides the will of him that slayeth. And of that law
Aquilia, there is a reason rendered: that the harm which is done is not the cause of the injury. But in a Combat they come thereunto with a mind prepared to slaughter: and it very seldom happeneth but that one of them is slain. Howbeit, the letter of Frederick must be reformed to the word of God.
4. The third cause is, to avoid ignominy: I am challenged, (saith some man) But if I fly, I shall be accounted a coward, and that discredit will redowned to my whole family. But this cause is not just enough. For we must use things, according as the dignity of each thing shall require. If it may seem that thine honor will be put in jeopardy, thou must not therefore adventure thy life, for that must be more worth to thee than any honor. This rather must thou regard, that thou bring not any shame to thy profession.
And the common profession of all Christians is, to do well and to suffer ill.
Wherefore Princes sin grievously which give liberty unto such bickering's.
The fourth cause is, that hatreds, controversies, and enmities, cannot oftentimes be otherwise finished. And that therefore trial must be made by Combat, that there may be some end of quarrels. But neither is this cause in very deed just enough, seeing there be other means to finish controversies.
For those are finished either by a consent of parties, or by the sentence of the Judge. But if they go yet further, the Magistrate hath the sword, he must use the same, and not permit the matter to Combat or chance. He hath weapons and Armor, he must make just war, and defend the innocent.
Nevertheless he must defend him by justice, not by the uncertain end and fortune of Combat. Moreover, the cause being now known, the Magistrate knoweth, that the one is innocent, wherefore he ought not to abandon him to present death. The power of the sword is not committed unto him, to the intent he should afterward permit the same to the rashness and fury of two men: Nay rather he is for this cause placed in so great authority, that he should do what lieth in him: which undoubtedly he doth not, if he permit controversies to be decided by Combat.
5. The fifth cause is, that least in an Army all the forces should be put in peril, it is better that the whole matter should stand in the danger of twain.
Yet this is not sufficient. For we must not do evil, that good may come of it.
But if thy cause be just, why doest thou suffer the same to be hazarded in the life of one man? Thou oughtest first and foremost to take heed, that thou take not unjust war in hand: secondly to do as much as thou canst, and to fight with all thy forces: since justice must not be dallied with, and placed in the fortune of twain. There is also another cause, whereby some of the Schoolmen being overcome (which I should not pass over) grant that such a time may happen, when Combat ought to be permitted. Of that mind was
Caietanus. And if there be two Armies (saith he) and one is superior in the equity of the cause, but inferior in strength by many degrees, so as if the same should come to hand stripes, they must all of necessity perish: it is better that the life of one man come into danger, than that the whole host should come into certain destruction. But neither can this in very deed be a sufficient cause, for it proceedeth of fear and desperation. For as we have before said, God defendeth not with sword and shield, and no less can he overthrow with few than with many. But we shall perish sayest thou: How knowest thou that? Thy life is the life of God, and thy cause, if it be just, is the cause of God. But Caietanus addeth: If an innocent be pressed with the false accusation of his superior, and that the Magistrate being corrupted, pronounceth against him the sentence of death, and the other be not able to resist: in this case, it is lawful (saith he) to admit a Combat, if it be offered by the Magistrate. Since if it be lawful to defend thyself against a robber by the highway, why may it not be lawful against a violent accuser? For what difference is there, whether he himself draw sword against thee, or whether the Magistrate do it by his appointment? For so is it said that David flue
Uriah with the sword of the Ammonites. Herewith some do yield: Howbeit, I see no cause why they should so do. For as we declared before, there is a
great difference between a Combat, and defense against a robber, since in a Combat they fight by appointment: in the other by chance. Against a robber, to defend himself: in Combat to slay the other. What shall I then do, wilt thou say? Even desire help of the Lord, and suffer all things, rather than to commit anything against the word of God. Now let us answer unto their
Arguments.
6. We must obey the Magistrate (say they:) I grant, but yet saving our conscience and duty unto God. Controversies (say they) can be finished no other way: Yes verily, I taught before by what means they may be finished.
Godly princes have in such wise fought: Though they were godly, yet were they also men, and they might err and be deceived. And most prudently doth Demosthenes answer: We must live by laws, and not by examples. It is lawful (say they) to use Lottes, therefore it is lawful to use Combat. I answer, although there be some Lotte in Combat, yet is there slaughter added therewithal. But even Jonah thou sayest, was by Lottes cast forth into the Sea: Nay rather he was in very deed found out by Lottes, but not cast forth. Howbeit, he being a prophet willed himself to be cast in by the commandment and inspiration of God. War may lawfully be made, therefore a Combat they say. Nay rather we have taught before, that between Combat and war there is a great difference. But David fought with Goliath: I grant, but yet was he led so to do, by the inspiration of the holy spirit. Neither must all things which are done by holy men, be drawn straightway unto an example. The Hebrews trust up the goods of the Egyptians: Abraham decreed to sacrifice his son: Samson married a wife that was a stranger: but that was done by the Lord. Wherefore we must give ear to reasons and good laws: For the Acts of holy men are oftentimes rather to be wondered at than followed.
7. But now will I set forth unto thee which art the Reader, a necessary Combat which we must continually make. God himself set two adversaries together in fight: namely the old man and the new, the flesh and the spirit.
For as Paul saith unto the Galatians: The flesh lusteth against the spirit, and the spirit against the flesh. And unto the Romans: The wisdom of the flesh is enmity against God. I know that in me, that is in my flesh, dwelleth no good thing: I feel another law in my members, fighting against the law of my mind. Unhappy man that I am, who shall deliver me? Let us strive here that sin may not reign in our mortal body, and that our old man may be crucified. And these verily be no light and playing pageants. I (saith Paul) chastise my body and bring it into servitude. Neither shall any be crowned unless he strive as he ought to do. And they which contend in wrestling, abstain themselves from all things. And no man being in the warfare of God, entangleth himself with carnal desires. And in the twelfth Chapter to the Hebrews. Let us look back unto Jesus Christ the Captain and finisher of our faith. This Combat lasteth not for the space of one hour, or month, or year, but all our life long. We have a magnifical Theater. For we are made a spectacle unto God, unto Angels, and unto men. We have the sword of the word of God, and the shield of faith, and for our adversary, we have the devil. For our striving is not against flesh and blood, but against spiritual naughtiness in celestial things. We have force and strength from Christ. I am able to do all things in Christ, which comforteth me, that the victory in the end may be certain. For I know whom I have believed, [and] that he is able to save that which I have committed unto him. I have fought a good fight, I have kept the faith, I have finished my course: A crown of righteousness is laid up for me: And God will subdue Satan under our feet.