Question VII: Whether, and how, the duel is unlawful

MONOMACHIAM, or the Duel, S. Bonavent. says in speculo animae, cap. 1., toward the end, is prohibited by the Laws, and has the character of mortal sin, both in the appellants and in the lord by whose authority it is held, and in the procurators and in the combatants fighting for money; and this is clear since it has the character of tempting God, and the weak is overcome by the strong, not by right but by nature. Some say, however, that custom excuses this deed; the contrary of which is commonly held by Theologians and Jurists. Such is S. Bonaventura's account.

DVELLUM is a combat of two or more, by agreement, in a fixed and appointed place and time, to redeem the truth of some matter, or to purge a crime or an imputed infamy. So the Doctors commonly: Sanchez Lib. 2. Decal. cap. 39.; Azor Tom. 3. lib. 2. cap. 5.; Bonacina tract. 3. disp. 11. quaest. 3. puncto 42.

TALE a combat is prohibited by the Church in cap. Monomachiam 2. quaest. 5. et cap. 1. et 2. de purgat. vulgari, and cap. Porro; although the Bishop could dispense in this, provided no death or mutilation of a member followed, as D. Bonavent. relates in confessionali, cap. 5. particula 29.

The Theologians condemn it also, with D. Bonavent. here, and D. Thom. 2. 2. quaest. 95. art. 8. ad 3.

DAMNATUR — the duel is gravely condemned in the Council of Trent sess. 25. cap. 19.. He speaks there of the solemn and public duel, held by the authority of Princes in their States.

RURSUS Gregory XIII also condemned the private duel in the Brief ad tollendam detestabilem, in the year 1582. And finally the same was decreed by Clement VIII in the year 1592.

FULMINAT — the Council of Trent moreover fulminates excommunication in these words:

Detestabilis — The detestable custom of duels, introduced by the contrivance of the Devil, that it might reap the ruin of souls together with the bloody death of bodies, is to be wholly eradicated from the Christian world. Emperors, Kings, Dukes, Princes, Marquesses, Counts, and by whatever other name temporal Lords, who have granted a place for Monomachia in their territories among Christians, are by that very fact excommunicated, and are to be understood as deprived of the jurisdiction and dominion of the city, castle, or place in which or near which they permitted the duel to take place, which the Church claims for herself; and if they be feoffed,

directis — the lands are at once acquired by the direct Lords. But those who have engaged in the combat, and those who are called their seconds, shall incur the penalty of excommunication and proscription of all their goods, and of perpetual infamy; and as homicides they ought to be punished according to the Sacred Canons. And if they have died in the conflict itself, let them be forever without Ecclesiastical Sepulture. Those also who have given counsel in the cause of a duel, both in law and in fact, or have by any other reason persuaded anyone to it, as well as the spectators, are bound by the chain of excommunication and perpetual Malediction: notwithstanding any privilege whatsoever, or wicked custom, even though immemorial.

ADVERTUNT — Fagundez, however, in Quintum praeceptum, Lib. 5. cap. 8. et alii, observes that the excommunication laid by the very fact upon Princes is not reserved, and accordingly can be absolved by any approved Confessor; for whenever the supreme Pontiff imposes an excommunication, if he does not reserve it, it is considered reserved to no one, and any Priest exposed to it can absolve from it, as Delrius noted, lib 4. disq. mag. cap. 4. quest. 4. sect. 2.; Graffis p. p. decis. lib. 4. cap. 23.; Sà V. Excommunicatio, 14.; Sanchez Tom. 1. decal. Lib. 2. cap. 39. num. 27. et tom. 2. de matrim. disp. 13.; Fagundez loco cit. num. 4.

ENIM — but Pius IV, in the year of our Lord 1560, in his Constitution, and Clem. VIII in 1592, reserved this excommunication to themselves; and they extend this censure, and the other penalties of the Council, to private duels as well.

POSSUNT — Religious, however, who hold the faculty of absolving from the papal cases, can absolve outside Italy and in Rome itself, as the Sacred Congregation declares, as gathered by Fagundez num. 5. and Diana part. 5. Tract. 14. resol. 102., who says they can be absolved in Sicily, Corsica, and Sardinia, which are probably outside Italy.

DEINDE — mark further that the excommunication of combatants, seconds, and spectators, in the Council, is not expressly stated to be by the very fact: therefore it is not a latae sententiae penalty — so teach Petrus Navar. Lib. 2. de restit. cap. 32. num. 293. and Rodriquez tomo 1. summae, in 2. edit. cap. 73.

EAM — that it is nonetheless laid by law, Suarez holds, de censur. disp. 13. sect. ult. num. 11.; Sanchez Lib. 2. decal. cap. 39. num. 26.; Navar. summa Lat. cap. 27. n. 150.; Delrius lib. 4. disq. magic. quaest. 4. sect. 4.; Toletan. 5. summa cap. 6. num. 32.; Sà V. Excommunicatio; Graff. p. p. decis. tract. 4. cap. 23.; Fagundez num. 7. For he seems to suppose the same from what has been said.

SED — but the dispute is already cut short, for Pius IV and Clem. VIII bind all of them by excommunication latae sententiae.

POENAE — the remaining penalties, however, require the sentence of a Judge, even deprivation of sepulture, as many Doctors teach, as gathered by Fagundez. Pius IV adds many other penalties, of which the same holds. Gregory XIII, however, includes also those who command and do not hinder.

CLEMENS — Clement VIII, moreover, interdicts the places in which a duel is held with the permission of the Lords, whose relaxation he reserves to himself and his successors alone; and because it is a censure, it is incurred by the very fact, as the Doctors commonly teach, as gathered by Sanchez Lib. 2. decal. cap. 39. num. 32.

GRAVITER — I observe, however, gravely, first, with Hurtado 2. 2. disp. 170. sect. 21. §. 190., Fagundez num. 35. and others gathered by him num. 29., against Filliucius tract. 29. cap. 9. num. 176., that the penalties inflicted for dueling are not incurred unless the duel follows. Wherefore if those going to it are removed, it is not incurred. The instigators, however, the relators, and those who intermeddle to promote the duel do incur them, by Clement VIII and Gregory XIII, as gathered by Fagundez num. 29.

ADVERTO — I observe secondly that some say it is lawful to hold a duel to protect life, so that force may repel force: but this is altogether false, as is commonly taught by Sanchez Tomo 1. decal. Lib. 2. cap. 39., Valencia, and others. Hurtado imagines a case indeed, which seems to me rather metaphysical than practical. See Diana part. 5. Tract. 14. resol. 99., who refutes him.

NEQUE — nor is a duel lawful to protect honor, the Doctors cry out commonly, as gathered by Sanchez cap. 39. num. 9.; Azor tract. 3. lib. 2. cap. 4. quaest. 6.; Fagundez num. 39. Alex. VII defined this in the decree of 1665, as I noted, set forth and proved in the place cited at the end of question 3.

PROPONIT — Diana, however, proposes the question part. 5. tract. 13. resol. 27.: whether, if the accuser offers a purgative duel, an innocent man may accept it in order to protect temporal goods, or his life, or a part of his body, which he would otherwise lose through the malice of the judge and of the accuser.

Negative — Negative answers are given by Lessius lib. 2. cap. 9. dub. 8. num. 47.; Filliucius tomo 2. tract. 29. num. 144.; Suarez de Charitate, disp. 13. sect. ult. num. 5.; Aragon. 2. 2. quaest. 64. art. 3. ad 3.; Abul. primo Reg cap. 17. quaest. ult.; Salon 2. 2. quaest. 64. art. 3. controu. 3.

ASSERUNT — but Sanchez affirms it, in summa, tomo 1. Lib. 2. cap. 39. num. 7.; Bannes 1. 2. quaest. 64. art. 7. dub. 4.; Caiet. 2. 2. quaest. 95. art. 8. ad 1. et in summa, V. Duellum.; Hurtado 2. 2. disp. 70. sect. 8. §. 170.; and others, as gathered by Fagundez num. 41. et 44.

PROBANT — they prove it because this is not a duel but just defense; for since it is lawful to kill an unjust despoiler of one's goods, the acceptance of a duel of this kind will also be just.

SED — but these men do not read the reasoning of D. Bonavent., who rebukes them: for this mode of defense is absurd and tempts God; for the innocent can easily be slain by the wicked, and it is not a just defense of the goods of a lower order to demand a life, and — what is more insane — to expose even one's own life to the peril of death.

Hinc — Hence Diana smiles wrongly, when he says that one may even accept a duel for the protection of honors and public offices.

Neque — Nor does the opinion of Hurtadi 2. 2. disp. 170. sect. 9. §. 82. prove to my mind, that an innocent man may offer single combat to his accuser when he cannot otherwise protect himself and his own; with him adhere Bannes 2. 2. quaest. 64. art. 7. dub. 4. Sanchez tomo 1. sum. Lib. 2. cap. 39. num. 7. Petrus Nauar. de restit. lib. 2. cap. 3. num. 289. Valentia tomo 3. disp. 3. quaest. 17. puncto 1. Nutilius 2. 2. tract. de Charitate, quaest. 17. art. 1.

Errant — They are perfectly in error, for, as D. Bonavent. says, they do not have the conditions of necessity with the moderation of blameless self-defense, since other ways lie open for their defense; and this one is assumed whereby they lose the valid protection of Justice, if the innocent man casts himself into the peril of death, repelling the aggressor only in a foolish manner, tempting God, and desiring that his own life and innocence be preserved from wounds — all of which, in my judgment, sound foolish, as the S. Doctor argues, and with him very many, as gathered by Fagundez num. 47.

Utinam — Would that the zealots for honor would attend to the fact that they are to be proclaimed infamous by the Church, accursed, and cast out for burial like an ass's. These would best satisfy the cartel by saying that they are Christians, to whom the Duel is forbidden because of infamy, as Bassaeus says, V. Homicidium 1. num. 15.

Sane — Ludovicus XIII. Iustus, rightly acclaimed by the supreme Pontiff Urbano VIII., sanctioned in the most flourishing Empire of Gaul that law worthy of golden tablets: that those who engage in a duel, sealed with the mark of perpetual infamy, after death inflicted by the executioner, should carry with them to Orcus the eternal disgrace of their glory. Most prudently did that glorious Monarch restrain the generous spirits of the Gauls from the more frequent slaughter of their own people. As some Orator shrewdly expounds, it was a device truly not unlike that by which the African peoples drew back the Lions from slaughter, hanging very many from the branches of trees and exposing them strangled. For the Generous Progeny indeed attended that spectacle of infamy, nor did the offspring of the Lion, seeing their fathers hanging from the gallows, ever return again to waylay merchants and travelers on those roads. They too likewise rested, nor did they lead their lion cubs on to the slaughter.

Audiant — Let them hear, therefore, the penalties inflicted upon duels by the new law of the Council of Trent, of Pius IV, Gregory XIII, and Clement VIII. Of these five are spiritual: first, Excommunication latae sententiae, reserved to the supreme Pontiff. Second, Deprivation of Ecclesiastical sepulture, if they die in the duel. Third, Interdict upon those places in which the duel was held, with the knowledge of their Lords. Fourth, Deprivation of ecclesiastical dignities and benefices, if they were Ecclesiastical persons. Fifth, Inability to obtain those and other things.

Quinque — Five also are temporal. The first is deprivation of States and dominion for those Princes who are subject to the Roman Church; or deprivation of the jurisdiction and dominion of the place in which the duel is held, for other Princes not subject. Second, the crime of Lèse-majesté. Third, rebellion. Fourth, confiscation of all goods. Fifth, perpetual infamy.

Omnes — All the temporal penalties require the sentence of a Judge in order to be incurred, likewise also the spiritual, except Excommunication and Interdict, as Fagundez proves at length, num. 51., in accordance with what I proved in Tract. de Legibus, disputatione 5. quaestione 7.