61. On the Duel and War

1. Marcus and Marcianus, soldiers, quarreled among themselves, and each afflicted the other with various insults. This was reported to the commander of the cohort, who ordered that those two soldiers should perpetrate a duel between themselves, otherwise they were to be cast into hard prison for a month. Unwillingly they institute the duel, and Marcus gravely wounded Marcianus.

Q. 1. What is a duel, and is it licit? 2. What of the duel of Marcus and Marcianus?

R. To the first. Cf. I. M. 746 seqq.; E. M. 747. To the second. The commander of the cohort indeed sins gravely by commanding the duel, and Marcus and Marcianus also sin gravely by perpetrating the duel. For a duel is intrinsically illicit and is gravely prohibited both by natural law and by canonical law. Nor indeed can the duel become licit for those perpetrating it from the fact that it is commanded. For from such a precept the danger in it of grave wound, mutilation, and death is not taken away, nor do those perpetrating the duel acquire a right, each over the other's members and life. Hence neither is its illicitness taken away as regards the one commanding, in the case, who commands it by way of punishment to avoid the frequent quarrels of soldiers. For the one commanding, in the case, neither himself has a right over the integrity of the members and the life of the soldiers, nor consequently can confer that right on the duellists themselves. Then the great scandal which comes from this is clear; for by this manner of acting, a broad way is opened for entering duels, especially among military men. And if a duel is illicit when it is only for the sake of spectacle or of showing courage, how much more must a duel be illicit in the case. C. Felicis 1, de Torneamentis. And this can also be confirmed from the following resolution of the Sacred Congregation of the Council.

"In the schools of the German universities certain special duels are had. For scholastic duels consist in this: that the duellists, using special arms, that is, a certain small knife, and the other parts of the body being well covered, inflict on themselves an incision or wound in the face, the traces of which nevertheless generally disappear in a short time. Therefore in no way is death or mutilation intended, and these sad facts happen very rarely and only by accident, from imprudence or from another cause extrinsic to the duel. Nor are these duels always committed properly from vengeance or for repairing honor, but chiefly for the sake of a game, cruel indeed, or of exercise. For this effect, indeed under the appearance of furnishing and fostering this game or exercise, there are societies among the disciples of the University, in which, for obtaining a higher grade, a certain number of duels to be instituted is prescribed, and, after a certain time has passed without duels, the presidents of the societies come together to raise pretexts for instituting duels."

But when the doubt was proposed: "Whether, by whom, and from what title irregularity is contracted when a duel is committed in that way in which in these times it is customary to be done among alumni of the University of Germany in the case," the Sacred Congregation of the Council, 9 Aug. 1890, responded: "Affirmatively, by the duellists and their seconds, from infamy of law." Acta S. Sed., v. 23, p. 242. From infamy of law, established by the Council of Trent, sess. 24, c. 19; by no means from lenity, which in the case has no place, nor from delict, since neither death nor mutilation follows. Cf. I. M. V. 2, n. 1332 seqq., 1350 seqq.

Therefore Marcus and Marcianus incur irregularity from infamy. As regards irregularity from delict, if death in reality or mutilation had followed, this also would have had place; but since Marcianus was only wounded, Marcus does not incur irregularity also from delict. I. M. V. 2, n. 1335.

But whether they have also incurred the excommunication reserved to the Supreme Pontiff can at first sight be doubted, because ex condicto seems to be lacking in the case, since Marcus and Marcianus institute the duel unwillingly and perpetrate the duel from a command imposed on them under penalty. But it does not seem that the agreement is in reality lacking in the case as to place, as to time, and as to arms, although unwillingly and from fear of prison they consent into the previous agreement, into the duel itself. Nor indeed do they seem able to be excused from fear of the penalty of prison, since even positive law, in the case, does not cease. And this is gathered from the propositions condemned by Benedict XIV. Cf. Enchirid. Moral. 747, 748; I. M. V. 2, n. 1118, 1128 seqq.

2. An unjust war was declared between Prince Albinus and Prince Rubinus. The army of Rubinus, who was justly defending himself in the war, was conquered; and, victory already having been obtained by the army of Albinus, the signal for ceasing from hostilities was made on both sides by the commanders. While the soldiers of Albinus are returning peacefully to camp from the field of battle, Leontius, a most ardent soldier of Rubinus, was still pursuing the enemies and killed one of them. Seeing this, a certain soldier from those to whom the military police had been committed in the army of Albinus immediately seized Leontius and was leading him before himself to the commander of the war. Leontius, now certain of undergoing the punishment of death, when they had to pass through a narrow place, feigning civility, invited the soldier to pass before him. Scarcely had the soldier gone before, when Leon- tius struck him from behind with a sword and killed him, immediately fleeing unharmed.

Q. 1. Is war licit, and what things are licit in war? 2. What must be thought of Leontius?

R. To the first. Cf. I. M. 751 seqq.; E. M. 753. - To the second. Leontius is guilty of a double homicide. He is guilty of the first homicide because, the hostilities now having ceased, and the signal of truce having been made by the commander of war, no soldier could now pursue, strike, and kill adversaries. And although the soldiers of the army of Rubinus were fighting altogether justly, nevertheless, the war ceasing, or even only being interrupted, none of them could now licitly and justly kill, since no one by private authority can kill a man, even one guilty and culpable. Hence Leontius is also guilty of the second homicide. For that soldier altogether legitimately and justly seized him, nor was he an unjust aggressor against his life. But the fact that Leontius killed him in order to avoid the punishment of death by no means makes the unjust homicide honorable.

Hence another case is resolved: whether, during war, private citizens can kill enemy soldiers whom they peacefully receive as guests, although they are compelled to this, or who meet them on the road, for example, unarmed, or few in number, or each one alone separated from the others. It must be altogether denied; for by private authority it is permitted to kill no one; and even in time of war, private citizens do not receive this power of wounding and killing. This one thing is permitted to them: to repel by force the force unjustly inflicted upon them, plainly in the same way as when there is question of an unjust aggressor.