Duelling

347. Definition. A duel is defined as a single combat, undertaken by agreement, with arms apt for killing.

a. A single combat is a combat entered into between two, or between several in an equal number on each side. For constituting a true duel it makes no difference with what intention it is undertaken: for the sake of spectacle, of showing courage, of vengeance, of repairing honor, or of exercise.

b. By agreement is an essential condition of a duel, and indeed by agreement concerning time, place, and arms; whence between the agreement for the duel and the duel itself some space of time ought to intervene. Therefore it is not a duel if two men, from an impulse of anger, provoke each other to a fight and immediately engage, even if they betake themselves to a determined place in order to fight; nor if someone provokes another to a duel and immediately attacks him, while the latter, having snatched up arms, defends himself.

c. With arms apt for killing: for it is of the notion of a duel that it be done with arms, and indeed with arms apt for killing or lethally wounding, such as guns, swords, daggers. It is not of the notion of a duel that a lethal wound can be inflicted, or that there be danger of killing or mutilation; but this is required, that a grave wound can be inflicted of itself and not only by accident, that is, a wound which constitutes a grave injury of the body or a gravely sinful injury. Therefore fights which are made with switches or sticks, or with iron whose edge is blunted, are not duels; nor are they duels which are so instituted that a grave wound cannot be inflicted except by accident, for example, because of the lack of skill of the combatants.

d. A grave wound is taken in a threefold sense: in a moral sense it signifies an injury which constitutes grave sin; in a juridical sense it signifies an injury which is punished in court by a determined penalty; in this sense, in the Austrian code, an injury is considered grave which cannot be healed within twenty days; in a specific sense it signifies a lethal injury.

e. Therefore three things are of the notion of a duel: alpha. a single combat; beta. undertaken by agreement; gamma. with arms apt for killing or lethally wounding. By reason of the second condition, a duel differs both from a brawl and from legitimate defense.

f. A fictitious duel is not a duel. Therefore those who fictitiously provoke and accept without the intention of engaging, or with certain hope that the duel will be impeded, or who only fictitiously fight without any danger of a wound, do not incur censures and do not sin except by reason of scandal, since the will of dueling is excluded.

¹ Ferraris, Bibliotheca, s. v. duellum. Das Duell in seinem Ursprunge und Wesen (Paderborn: Schoningh, 1864). M. Hofmann, Stellung der Kirche zum Zweikampf (Zeitschrift fur kath. Theol., XXII, 1898, pp. 455, 601). A. Wiesinger, Das Duell vor dem Richterstuhle der Religion, der Moral, des Rechtes und der Geschichte (Graz, 1895).

348. A duel is divided: a. Into solemn, which is done with certain solemnities, namely letters of provocation and employed seconds, etc., and simple, which is done without solemnity.

b. Into fatal, which is to death or with the intention of killing, and non-fatal, which is done only with the intention of wounding.

c. Into public and private, according as it is undertaken by public authority or only in a private name.

That even non-fatal duels are by law true duels and fall under the penalties of a duel is gathered from the constitution Illius vices of Clement VIII, who interdicted even duels entered into with the pact "of ending the combat as soon as either one has been wounded or has shed blood." But the reason why the Church also punishes non-fatal duels as fatal by the gravest penalties is chiefly this: because they promote fatal duels.

349. Principles. 1. A duel undertaken by private authority is never licit. And indeed it is opposed to the law of nature: for duelists expose themselves to danger of death, mutilation, or at least wounding, to be inflicted both on themselves and on another; but this is equally illicit as the very killing, mutilation, or wounding inflicted on oneself or another. Nor can that action be made honorable from its end; for it is never licit to posit an action evil in itself for a good end. It is also opposed to ecclesiastical law: for the duel has been prohibited and punished with penalties by the Council of Trent and afterward more often by the Church.¹

a. Among the decrees by which duels are prohibited by the Church, especially to be noted is the constitution Detestabilem of Benedict XIV, by which five theses concerning the duel are condemned.² From these it is clear that every duel properly so called is illicit, even if it is offered or accepted to avoid the gravest evils, for example, lest reputation, office, or goods of great importance be lost. For that the acceptance of a duel may be licit for preserving the greatest goods, the good effect, or the conservation of the goods, ought to follow from the duel at least equally immediately as the evil effect, or the danger or injury of one's own and another's life. But the conservation of the goods does not follow immediately from this, that someone exposes his own or another's life to danger or injures it in reality, but from this, that one accepting a duel procures for himself the common estimation of those who, by a dangerous confusion of concepts, call culpable rashness true fortitude.

b. From the older authors, several had taught that it is licit to accept a duel if it were the only means of avoiding the gravest evils.³ But now this opinion, after the Benedictine constitution, can no longer be defended; rather this must altogether be held, that to expose one's own or another's life to danger is licit only for defending one's life or goods against an actual aggressor. But in this case there is no actual aggressor.⁴

2. Duels which are undertaken by public authority for the common good are licit, when that common good cannot be obtained without the shedding of blood. For if an army can licitly fight against an army by public authority, a few against a few, or one against one, will also be able to do this.

The sole cause of the common good on account of which a duel is licitly undertaken is this: that a just war may be ended or forestalled. But if duels are undertaken by public authority from another end, for example, to avenge an injury, to finish private controversies, or to manifest truth and innocence (the vulgar purgation), they are equally illicit, because to obtain these ends there is at hand another more apt means, namely legitimate judgment.

¹ Sess. 25, c. 19, De reform. Constitution of Gregory XIII, Ad tollendum (5 Dec. 1582); constitution of Clement VIII, Illius vices (17 Aug. 1592); constitution of Benedict XIV, Detestabilem (10 Nov. 1752); constitution of Pius IX, Apostolicae sedis (12 Oct. 1869); encyclical letter Pastoralis officii of Leo XIII (12 Sept. 1891). The Austrian criminal code also punishes duelists with the penalty of grave prison of at least ten years.

² They can be consulted in Lehmkuhl, I, n. 852; their first is this: A military man who, unless he offers or accepts a duel, would be held as fearful, timid, abject, and unfit for military offices, and thence would be deprived of the office by which he sustains himself and his own, or would have to lack forever the hope of promotion otherwise owed and merited by him, would be free from fault and penalty, whether he offers or accepts a duel.

³ St. Alphonsus (n. 400) attributes this doctrine to Holzmann, Pichler, Reiffenstuel, Sporer, Elbel, Lessius, Sanchez, etc.

⁴ Cf. Lugo, disp. 10, n. 172; Lehmkuhl, Das Duell im Lichte der Vernunft (Stimmen aus Maria-Laach, 1894, I, p. 345).

350. On academic duels. From the declaration of the Holy See it is clear that duelists of this sort and their seconds are irregular from infamy of law.¹ From this these three things are gathered: a. The single combats of students are true duels; for infamy of law is a penalty imposed on duelists by the Council of Trent. The same is clear from the nature of the thing: for in academic fights all things are present which constitute a true duel: a single combat undertaken by agreement with arms apt for lethally wounding. And although the danger of killing or mutilation is excluded of itself, nevertheless it is so instituted that a grave wound (in the moral sense) can be inflicted of itself, not only by accident. b. For a duel prohibited by the Church under penalties it is not required that there be danger of a lethal wound, but the danger of grave injury of the body suffices. c. Students who commit the Mensur incur excommunication; for if they incur the other penalty imposed by the Council, namely infamy, they also undergo this one imposed by the same Council. And indeed, if from the declaration of the Church they commit a true duel, they cannot escape the penalties inflicted by the same Church on duelists.

The penalties which are always affixed to duels and still have force are reckoned: a. infamy of law, which is contracted by the very fact of committing the duel, and from which irregularity arises; b. excommunication simply reserved to the Roman Pontiff; c. deprivation of ecclesiastical burial, if the duelists die in the conflict itself; to these penalties there can be added d. irregularity from delict, if death or mutilation really occurs.²

¹ S. C. C., 9 Aug. 1890.

² Cf. Acta s. sedis, XXIII, p. 212.

A DUEL is defined to be a premeditated and prearranged combat between two persons with deadly weapons, and usually in the presence of at least two witnesses, called seconds, for the purpose of deciding a quarrel, avenging an insult, or clearing the honour of one of the combatants or of some third party whose cause he champions.

A duel, then, is a premeditated and prearranged single combat, for if two persons begin to quarrel and then come to blows, it is not a duel even if death be the result. Nor is it a duel if two enemies meet by accident and begin straightway to fight. A duel is a combat with deadly weapons, so that a fight with sticks or with the fists is not a duel. Although seconds are commonly present, yet their absence would not prevent a single combat from being a duel if the other conditions were verified. The duel is for the purpose of deciding a private quarrel, and for such a purpose it is unlawful even if it have the sanction of public authority, for there are other and lawful means of settling such matters. A single combat between champions of hostile nations entered into by public authority for the purpose of terminating the war, or giving courage to the army, would not be a duel, and might be permitted.

It is never lawful to fight a duel by private authority, for it obviously exposes the parties to grave risk of killing or wounding, or of being killed or wounded, and this is never lawful by private authority except under the conditions which justify killing in self-defence, and these are not verified in the duel. The Council of Trent¹ very emphatically condemned duelling as a detestable practice and excommunicated the guilty parties, their seconds and abettors, as well as emperors, kings, and princes who permit it in their territories. This excommunication is renewed by Canon 2351, and the power of granting absolution if it has been incurred is reserved to the Pope. Benedict XIV, by a constitution dated November 10, 1752, condemned the following propositions as false, scandalous, and pernicious: ““(a) A military man who, unless he offer or accept a duel, would be considered cowardly, timid, worthless, and unfit for office in the army, and so would be deprived of his post by which he gains support for himself and his family, or would for ever lose all hope of promotion otherwise due to him, would incur neither fault nor penalty if he offered or accepted a duel.

“‘(b) Those who accept or challenge to a duel for the sake of defending honour or avoiding disgrace may be excused when they know for certain that the combat will not come off, inasmuch as it will be prevented by others. (c) A general or officer in the army who accepts a duel through serious fear of losing reputation or office does not incur the penalties inflicted by the Church on those who fight a duel.”

The contradictory of these false propositions must be held by all who admit the authority of the Church.

¹ Sess. 25, c. 19, de Ref.

Clement VIII, in a constitution dated September 1, 1592, declared that those incurred the penalties of duelling who fought under the stipulation that they would stop after a certain number of blows, or as soon as either was wounded or blood was drawn. Grave sin, then, would be committed by challenging or accepting a duel even under these conditions, at least on account of the scandal and disobedience to authority, if not on account of the danger.

By English and American law duelling is illegal, and if death be the result, it is regarded as murder, and the seconds are liable to punishment as accessories.

Duellum.—A single combat with deadly weapons undertaken. by agreement. Those who actually fight or challenge, or accept a duel, or afford any assistance or favour to those who do, incur this censure. Spectators of set purpose, those who permit it or do not stop it as far as they can, though they be kings or generals of armies, also incur it. Canon 2388 VIII. Clerici in sacris constituti vel regulares aut moniales post votum sollemne castitatis, itemque omnes cum aliqua ex praedictis personis matrimonium etiam civiliter tantum contrahere praesumentes, incurrunt in excommunicationem latae sententiae Sedi Apostolicae simpliciter reservatam. (Clerics constituted in sacred orders, or regulars or nuns after a solemn vow of chastity, and likewise all who presume to contract marriage, even merely civilly, with any of the aforesaid persons, incur an excommunication latae sententiae simply reserved to the Apostolic See.)

(St. Alphonsus, Theologia Moralis, book III, nn. 399-401; Homo Apostolicus, tract 8, nn. 21-28.)

I. Notion. Dueling, in the canonical sense, is defined: a contest of two persons, or at least of a few, entered into by a prior agreement about place and time, and that with lethal weapons. It is said:

1. A contest of two persons, or at least of a few; these words are to be understood so that single and determined persons fight with single and determined persons.

2. By a prior agreement about a determined place and time. Therefore both the place and the time must be designated. Hence it would not suffice that they say: we shall fight wherever we first meet each other (St. Alphonsus, III, 401).

3. With lethal weapons. It is not required that the contest be entered into with grave danger of killing or grave wounding; rather, it suffices that the weapons with which the contest is carried on be lethal.

Corollary. To dueling accepted in the canonical sense there also pertain: 1. duels to first blood, as they are called;¹ 2. academic duels (Bestimmungsmensuren), that is, those which students are accustomed to enter into for the sake of display, with weapons indeed lethal, namely with a small knife, but with such cautions employed that danger of killing or grave wounding is morally removed.² But so-called American duels do not pertain here, that is, those by which both expose themselves to danger of death or grave harm, so that one falls by chance and the other by chance escapes unharmed; for example, if of two tablets one is harmless and the other is infected with poison, and both must consume one or the other.³ Such duels, I say, do not pertain here, because they exclude combat; hence they are not subject to the ecclesiastical penalties against duelists, although, as is clear, they are gravely illicit. Nor do fictitious duels seem to pertain here, that is, duels offered and accepted with the sole intention of simulating combat, in order to avoid the mark of timidity among uncultivated men; nevertheless these too are gravely illicit on account of scandal (St. Alphonsus, III, 399).

¹ Clement VIII, Constitution Illius vices, § 5 (1592).

² Sacred Congregation of the Council, June 13, 1926 (Acta Apostolicae Sedis 1926, p. 132).

³ Vermeersch, Theologia Moralis, II, 614.

II. Division. A duel is distinguished into public or solemn and private, according as it is entered into without or with certain ceremonies, for example with witnesses, whom they call seconds, and so forth.

III. Morality. 1. A duel entered into by public authority in place of war is lawful. For what authority can impose on many, it is also lawful to commit to a few; indeed, it is preferable that a few should fight in the name of the commonwealth in place of many (St. Alphonsus, III, 400).¹ Yet if the ranks are very unequal, the common good seems to require that the leader of the stronger rank, provided he is waging war justly, choose war, unless they prefer to choose unequal persons for single combat; but duels of this kind now have no place.

Corollary. I said that a duel entered into by public authority in place of war is lawful; for not even public authority is permitted to impose or permit a duel for displaying or increasing skill, for investigating truth or manifesting innocence,² for vindicating an injury, and so forth. It is illicit to permit these, both because a duel, unless it takes the place of war, is evil in itself, and because, if there is question of investigating truth, or manifesting innocence, or vindicating an injury, a duel is an unsuitable means to the intended end (St. Alphonsus, III, 399).

2. A duel entered into by private authority and with danger of killing or grave wounding is gravely illicit. For it is an attack upon the life or integrity of members of one's neighbor, done deliberately and by private authority; according to what was said in n. 741, this is altogether prohibited. There is added the malice of suicide, insofar as it involves consent to one's own killing or wounding. Add the ecclesiastical documents which altogether reprobate dueling;³ and especially note the propositions condemned by Benedict XIV in the Constitution Detestabilem,⁴ which are:

First: A military man who, unless he offers or accepts a duel, would be regarded as fearful, timid, abject, and unfit for military duties, and would thereby be deprived of the office by which he sustains himself and his own, or would have to lack forever the hope of promotion otherwise due and deserved by him, would be free from fault and penalty, whether he offers or accepts the duel.⁵

Second: Those who accept or provoke a duel for the sake of protecting honor or avoiding human contempt can also be excused, when they know certainly that the fight will not follow, as it is to be impeded by others.⁶

Third: The commander or military officer who accepts a duel from grave fear of loss of reputation or office does not incur the ecclesiastical penalties laid down by the Church against duelists.⁷

Fourth: In the natural state of man it is lawful to accept and offer a duel in order to preserve one's fortunes with honor, when the loss of them cannot be repelled by another remedy.⁸

Fifth: The asserted license for the natural state can also be applied to the state of a badly ordered city, namely one in which, either by the negligence or by the malice of the magistracy, justice is openly denied.⁹

Objection. It is lawful to place an act which has an evil effect, provided it also has a good effect. But a duel also has a good effect, namely honor to be restored.

Resp. Strictly speaking, a duel does not have a good effect, or it is not ordered to a good effect, that is, to honor to be restored; rather, once the duel has been posited, insulting men regard honor as restored. There is added that the good effect is obtained by means of an evil act.

3. Duels entered into without danger of killing or grave wounding are likewise gravely illicit; either because, according to what was said in n. 747, they pertain to dueling taken in the canonical sense, in which case they are prohibited by the Church under grave obligation; or because they bring grave scandal with them, as fictitious duels do; or because they expose persons to danger, even though they exclude combat, as American duels do.

Corollary I. "If a nobleman, or a soldier, is challenged to a duel, he can lawfully respond: I, as a Christian, cannot accept a duel; nevertheless I am prepared to defend myself against unjust aggressors" (St. Alphonsus, III, 400).

Corollary II. If someone challenges you to a duel, prepared to kill you in any way whatever, it is lawful to accept the fight and weapons, because then you are rather defending yourself against an unjust aggressor than accepting a duel (St. Alphonsus, III, 400).

¹ Cf. 1 Kings 17.

² Chapters 1 and 2, De purgatione vulgari.

³ Council of Trent, session 25, De reformatione, c. 19; Gregory XIII, Constitution Ad tollendam (1582); Clement VIII, Constitution Illius vices (1592); Leo XIII, letter given to the Bishops of Germany and Austria (September 22, 1891).

⁴ November 10, 1752.

⁵ Denzinger-Bannwart, n. 1491.

⁶ Denzinger-Bannwart, n. 1492.

⁷ Denzinger-Bannwart, n. 1493.

⁸ Denzinger-Bannwart, n. 1494.

⁹ Denzinger-Bannwart, n. 1495.

IV. Penalties against duelists. 1. The penalties established against a duel accepted in the canonical sense are:

a) Excommunication simply reserved to the Apostolic See (can. 2351, § 1), which is explained in the treatise on delicts and penalties.

b) Deprivation of ecclesiastical burial, according to the norm of can. 1240, § 1, which likewise is explained in the cited treatise.

c) Infamy of law, according to the norm of can. 2351, § 2.

d) Irregularity from delict, according to the norm of can. 985, 4° and 5°.

2. As regards remission of penalties, see the treatise on delicts and penalties.

V. Obligation of restitution which a duel can bring with it is explained in the treatise on the seventh precept.

III. Temporal damages are distinguished into damages inflicted on the injured person himself and damages inflicted on third parties.

1. Damages inflicted on the injured person himself consist in the expenses of treatment, yet with those things deducted which he, if healthy, would have had to spend on food; likewise in emergent damage or ceasing profit for the time in which the injured person still lived and had to cease from labor. Restitution must be made according to the valuation of the hope of obtaining the goods, and indeed to the injured person himself or, if he has died, to his heirs. But if the killer does not restore these things, his heirs are held to restitution, unless the injured person has condoned them. "When remission of the injury has been made, remission of the damages is not understood to have been made" (St. Alphonsus, III, 630, 631).

Question 1. Whether something can be deducted from restitution of ceasing profit for the labor which the injured person would have had to spend in order to obtain the profit.

Response. Some affirm it; others seem rightly to deny it, for by his unjust action the killer caused the deprivation of the whole profit; hence he is also held to restore the whole profit. Yet in practice "Bonacina reasonably reconciles the opinions, saying that only that should be subtracted which the one killed is presumed to have been willing to give for the redemption of the labor" (St. Alphonsus, III, 639).

Question 2. Whether the heirs of the killer are freed from the obligation of restoring if the killer is punished with death.

Response. It seems this must be denied, because the penalty is judged to have been imposed only to satisfy vindicative justice, not commutative justice. Nevertheless, the heirs are excused from restitution if compensation for damages is not sought, because then the parties are presumed to condone, unless the thing still existed, or unless the damage was very grave (St. Alphonsus, III, 705).

2. Damages inflicted on third parties can chiefly regard the family, that is, parents, wife, and children; other blood-relatives; those to whom the one killed was doing good; and the creditors of the one killed. Now:

a) Damages inflicted on the family consist in deprivation of the support which the one killed was procuring for it, and likewise of the profit which he would still have procured for it. By the consent of all, these must be restored. The reason is deduced from the fact that the killer injured not merely a physical person, but, as it were, a moral person; a moral person, I say, which the others constituted with the person killed. Hence restitution is to be made to them (St. Alphonsus, III, 631). Nevertheless, "nothing is restored for funeral expenses, because those eventually would have had to be made at some time; unless perhaps, on the occasion of the death inflicted, for example outside the homeland, it was necessary for greater expenses to be made" (St. Alphonsus, III, 631). For the rest, restitution again must be made according to the valuation of the hope of obtaining those goods (St. Alphonsus, III, 631, question 2). A right norm will be the one which insurance societies follow on the occasion of an adverse event.

Question 1. Whether restitution is to be made to the family if it can conveniently provide for itself.

Response. Affirmatively; since the fact that the family can provide for itself does not prevent its right from having been injured; but from an injured right there arises the obligation of restoring. Yet the killer is not held to restore if the family receives from another what it would have received from the injured person, for example, "if the wife (and the same would have to be said of children and parents) afterward has married equally conveniently, nothing is to be restored to her; because then in reality she does not suffer damage" (St. Alphonsus, III, 631, question 1).

Question 2. Whether the injured person can remit the restitution owed to the family.

Response. Many deny it, because no one can remit restitution owed to another; but with St. Alphonsus and others it seems this must be affirmed, because the right of the family is entirely subordinated to the right of the father. Hence just as the father can validly transfer goods into another's ownership, so too he can validly remit restitution for them. But here again note: "When remission of the injury has been made, remission of the damages is not understood to have been made" (St. Alphonsus, III, 630).

b) Damages inflicted on other blood-relatives do not have to be restored: neither by reason of the good from the obtaining of which he impeded them, because they did not have a strict right to it; nor by reason of the means employed, since it would be unjust only with respect to the one killed. For the same reason the same must be said about the poor to whom the one killed was doing good, and about others who would have received certain things from the testament (St. Alphonsus, III, 632).

c) Damages inflicted on creditors likewise do not seem to have to be restored. It is indeed true that they are impeded, as we suppose, from obtaining a good in which they had a strict right; but they are not impeded by the killer, but by the heirs or by the law exempting the heirs, while the killer is only an occasional cause (St. Alphonsus, III, 634).

Nevertheless, St. Alphonsus and others judge that the enumerated damages must be restored if the killer acted with the intention of harming the enumerated persons (n. 996).

Corollary I. He who provokes another to a duel and kills or wounds the provoked man, who freely accepts the contest, is not held to restitution, neither toward the injured person, because he consented to the damage in fortune that would follow, nor toward the family, because the injured person, from whom the family would have received goods, by his own consent prevented him from acting unjustly toward it, since it had only a consequent right in the goods (St. Alphonsus, III, 638).

Corollary II. The one attacked, who deliberately exceeded the measure of blameless defense, seems to be held to restitution for the damages that followed from the excess, because the excess was truly unjust (St. Alphonsus, III, 637).

Objection. The attacker knowingly and willingly exposed himself to the danger that the one attacked would exceed the measure of blameless defense; but no injury is done to one who knows and wills.

Response. He who knowingly and willingly exposes himself to the danger that his right be injured is not therefore judged to yield his right.

Corollary III. What has been said about damages following from homicide is also to be applied to damages arising from wounding and other injuries of the body.

This excommunication is contracted by:

I. Those making gain from indulgences (canon 2327). By force of this canon, those are excommunicated who, after receiving a price, gain profit either by granting, publishing, or causing indulgences to be published. It is required that the price have been accepted, but not that a simoniacal intention was present; it does not matter whether the price is expended on pious works. By force of this canon those are also excommunicated who, because of indulgences, sell for more objects enriched with indulgences.

Bishops also can contract this censure.

II. Those giving their name to a Masonic sect or to other associations of the same kind which machinate against the Church or legitimate civil powers (canon 2335). For the penalty to regard a certain association, it is required that it machinate against the Church or legitimate civil powers. It is disputed whether there are also required, as obtains in the Masonic sect, a strict bond by which members are united and a hidden organization. Some deny this, because they take the words "which machinate..." as merely explanatory of "of the same kind." Others affirm it, because they judge the words "of the same kind" to be taken in a broader sense, so that they also include the hidden organization which obtains in the Masonic sect. Given the doubt, we follow the milder opinion, the more so because if it were enough that an association machinated against the Church or legitimate civil powers, the legislator would certainly have omitted from the new Code the words "of the same kind," which gave occasion to the dispute. Hence canon 2335 certainly regards, besides the sect of Masons, the societies of the Carbonari,¹ Fenians,² Anarchists, Nihilists, and Internationalists; but not, although they are prohibited, socialist,³ biblical,⁴ clerico-liberal societies; nor the workers' societies called Odd Fellows,⁵ Sons of Temperance, Knights of Pythias, Independent Order of Good Templars (Guttempler-Orden)⁶ and societies which promote the cremation of human corpses.⁷ Moreover:

1. Clerics who have committed the delict discussed under II are punished with the penalty of suspension or privation of the benefice, office, dignity, pension, or function itself, if perhaps they have any in the Church; religious, however, with privation of office and of active and passive voice and with other penalties according to the norm of the constitutions. In addition, clerics and religious giving their name to a Masonic sect and other similar associations must be denounced to the Sacred Congregation of the Holy Office (canon 2336).

2. The confessor to whom the faculty is granted of absolving from the censure set forth should require from the delinquent those things which the Holy See is accustomed to require: that they separate themselves entirely from the prohibited society and abjure it. But in a case in which great damage would flow from this for them, they can materially sustain the enrollment, but they are bound formally to renounce the society; and therefore: 1° let them promise that never again will it be the case that they involve themselves in any act of those societies, whether secret or public, and especially that they will never again pay the required contribution; 2° let scandal be removed in the best way that can be done; 3° let them be disposed in mind to withdraw their name if and when they can do this without grave damage.⁸

In the faculties of the Sacred Penitentiary it is established: 1° let them separate themselves entirely from the prohibited society and abjure it; 2° let them denounce ecclesiastical and religious persons, if they know any enrolled in it; 3° books, manuscripts, and signs pertaining to the same, if they retain any, let them hand over into your hands, to be cautiously transmitted to the Holy Office as soon as possible, or at least, if just and grave causes demand it, to be destroyed; 4° with a grave salutary penance joined according to the measure of the faults, together with frequency of sacramental confession and the obligation of repairing the scandals caused.

III. Those presuming, without due faculty, to absolve from an excommunication latae sententiae reserved to the Apostolic See in a most special or special manner (canon 2338, § 1). As to the word "presuming," see what was said in n. 858. For the rest, it is required that they actually absolve from the censure; it is not enough that they merely hear the delinquent or pretend to absolve him.

IV. Those furnishing any help or favor whatever to an excommunicated person to be avoided in the delict for which he was excommunicated; likewise clerics knowingly and spontaneously communicating with the same in divine things and receiving him in divine offices (canon 2338, § 2).

1. As to the former, it should be noted that it concerns a delict already committed, and therefore help or favor furnished by which someone can persist in the delict for which he was excommunicated.

2. As to the latter, observe: 1° since the law is to be interpreted strictly, religious do not come under the name of clerics unless they have received first tonsure (canon 108); 2° those communicating in divine offices are those who perform divine things with one to be avoided; 3° those receiving in divine offices are understood to be those who, enjoying the right or office of admitting to divine offices, admit an excommunicated person to be avoided to them.

V. If anyone against the prescription of canon 120 has dared to drag before a lay judge another, that is, not his own, Bishop, even merely titular, or an Abbot or Prelate nullius, or one of the supreme Superiors of religions of pontifical right (canon 2341). The prescription of canon 120, insofar as it must here be attended to, establishes that Bishops, even titular ones, Abbots or Prelates nullius, and supreme Superiors of religions of pontifical right cannot be summoned before a lay judge without the permission of the Apostolic See, unless in some place by special concession there has been derogation at least in part from the privilege of forum.

On the phrase "has dared," see n. 858; on the phrase "those dragging," p. 766.

Note. A cleric who, without having obtained permission from the local Ordinary, has dared to drag before a lay judge another person enjoying the privilege of forum, apart from those enumerated here and on p. 766 under IX, incurs ipso facto suspension from office reserved to the Ordinary; but a layman is to be punished by his own Ordinary with suitable penalties according to the gravity of the fault (canon 2341).

¹ Cf. Constitution of Pius VII, Ecclesiam, September 25, 1821, and Leo XII, Graviora, March 13, 1825.

² Cf. Holy Office, January 12, 1870.

³ Encyclical of Leo XII, Quod Apostolici, December 28, 1878.

⁴ Constitution of Pius IX, Qui pluribus, 1846.

⁵ Syllabus, § 178.

⁶ Holy Office, August 20, 1894.

⁷ Holy Office, August 9, 1893; Holy Office, May 19, 1886.

⁸ Holy Office, March 7, 1883 (Collectanea, n. 1593).

The mere presence, however, of condemned matter in a writing does not cause it to fall under prohibition.

(a) Some works are not forbidden unless the author’s purpose to teach error or attack the truth is known. Hence, books on religion written by non-Catholics which contain errors against the Catholic Faith are not forbidden, unless they deal with religion ex professo (i.e., not incidentally or cursorily, but clearly for the purpose of teaching). It is not necessary, however, that religion be the main theme of the book, Similarly, books that attack religion are forbidden, not when attacks are casual or by the way, but when they are made purposely; and the same is true as regards books that insult the clerical state. The purpose is recognized from the declaration of the author, from the nature of the work, from the systematic treatment, length or frequency of argumentation or attack, etc.

(b) Other works are not forbidden, unless they contain not only agreement with error, but also argument in defense of error. Thus, books in favor of heresy, schism, suicide, duelling, divorce, Freemasonry, etc., are forbidden when they champion wrong causes by disputing in their behalf.

(c) Other works are forbidden, not because they state, but because they approve of error. Such are books that attack or ridicule the foundations of religion or the dogmas of faith, those that disparage worship, those that are subversive of discipline, those that defend proscribed propositions, those that teach and favor superstition, etc.

Fighting.—Fighting is an angry conflict between two or more persons carried on by means of physical violence.

(a) Thus, it is an angry conflict, and so differs from contests of strength or skill made for the sake of sport, amusement, recreation, health, exercise and training. Hence, wrestling and boxing matches, football games, fencing and similar athletic contests, in which fair play and a sportsmanlike spirit prevail, are not fighting as here understood. Similarly, the tournaments of the medieval knights were sports or spectacles, rather than fights.

(b) It is a conflict, and so differs from punishment inflicted by lawful authority, as when a police officer uses his club to prevent a crime, a parent or teacher chastises insubordinate children, or a sober man scuffles with an inebriate to take away his flask or with a lunatic to deprive him of a weapon.

(c) It is a conflict between two or more individuals, and so differs from war and sedition, which are conflicts between nations or parts of a multitude.

(d) It is conducted by means of physical violence, that is by the infliction of bodily injuries or harm. Thus, fighting differs from quarreling, which is a dispute in words. It makes no difference whether the attack be made by fists, fingernails or teeth, or by weapons or missiles, or whether the bodily harm be direct (e.g., a blackened eye) or indirect (e.g., a hat knocked off the head).

Kinds of Fighting.—(a) As to its origin, fighting is provoked or unprovoked, according as one who fights is attacking another or defending himself against attack. (b) As to its manner, it is an ordinary fight or a duel, according as it takes place without or with previous arrangement and stipulated conditions. (c) As to its eject, the civil law distinguishes between assault and battery. Assault is a show of violence against the person of another, as when one lifts one’s fist or cane in a threatening manner to put another in fear of bodily harm. Battery is the actual infliction of personal violence, as when one strikes, pushes, scratches, bites, or spits on another.

The Sinfulness of Fighting.—(a) Unprovoked fighting is from its nature a mortal sin. It is classed among the works of the flesh that exclude from the kingdom of heaven (Gal, v. 20, 21), and it is essentially opposed to the charity owed to a neighbor. It is frequently only a venial sin, either because the act is not entirely deliberate, as when one fights in sudden anger, or because the violence is of a trifling kind, as when school-children pull one another’s hair or throw snowballs.

(b) Fighting under provocation is no sin at all, when one intends only to defend one’s rights and does not go beyond what is necessary for lawful defence, as when one struggles with a burglar who is trying to enter one’s house, and pushes him through the door. It is a venial sin, when the person who is resisting aggression acts with some slight degree of hate or revengefulness, or inflicts a little more injury than is really necessary. It is a mortal sin, when the person who was attacked fights in a spirit of hate and revenge, or deliberately and needlessly seeks to kill or seriously maim the adversary.

Causes of Fighting.—The remedy of sinful fighting is the removal of its causes. The sources of fighting are proximate and remote.

(a) The immediate cause is anger. The angry man provokes fights (Prov., xv. 18, xxix. 22), for anger, being a desire of revenge, is not content to injure another secretly, but wishes to punish him—that is, to injure him in such a Way that he will know he is being punished and will feel grief on that account. Anger also blinds one to the foolishness of one’s actions, and so leads one precipitately into quarrels and fights (Prov., xviii. 6).

(b) The remote cause of fighting is an inordinate desire of temporal things, such as wealth, power, ease: “Why are there wars and disputes among you? Is it not because of the desires that war among your members?” (James, iv. 1). Those who are overmuch concerned with their own interests, easily take offense at what they consider slights or insults or opposition, their rage bursts forth, and they proceed at once to visit revenge on those at whom they are offended. It was greed and envy that caused the herdsmen of Palestine to fill up the wells dug by Isaac and to fight with his servants for possession (Gen., xxvi. 14 sqq.).

Hatred and Fighting.—(a) Hatred is not necessarily a cause of fighting. The hater wishes evil to his neighbor, not as punishment, but absolutely; his passion is calmer, more lasting, and more insatiable than that of the angry man. If it suits him, he will bide his time patiently, pretending friendship, but all the while plotting ruin to the one he hates. (b) Hatred at times does bring on fighting, for, if the hater sees that he can safely attack openly, he will use quarreling and fighting as a means to his purpose.

Occasions that Frequently Bring On Fighting.—(a) Boasting about self or depreciation of others in the presence of persons who will take offense occasions fights, for “he that boasteth and puffeth himself up stirreth up quarrels” (Prov., xxviii. 25). Thus, disputes over the respective merits of nations or political parties often bring on bloody encounters. (b) Drunkenness occasions fights, for it so stupefies the mind that one minimizes one’s danger and exaggerates one’s own strength, and so is emboldened to attack others (Prov., xxiii. 29, 30).

Evil Consequences of Fighting.—(a) Charity is wounded by fighting, wherefrom there often result lasting hates, discords, scandals. (b) Justice is wounded by fighting, as when a person unjustly maims or kills his neighbor, and is himself imprisoned or executed, to the disgrace and deprivation of his dependents.

Duelling.—A duel is a prearranged combat between two persons fought with deadly weapons, for the purpose of settling a private quarrel.

(a) Thus, it is a combat, and hence the “suicide duel,” in which the contenders draw lots with the understanding that the loser must kill himself within a specified time, is not properly a duel.

(b) A duel is prearranged, that is, the time, place, and weapons are determined in advance. Hence, if two feudists meet accidentally and proceed at once to shoot, their combat is not strictly a duel. It is not necessary, however, that a formal letter of challenge and a letter of acceptance precede the fight.

(c) It is between two persons, that is, a determinate combatant is matched against a determinate opponent. A true duel, however, might be carried on between many couples simultaneously, as in the fight between the twelve soldiers of Abner and the twelve soldiers of Joab (II Kings, ii. 13-17). The presence of seconds or witnesses is not essential to a duel.

(d) A duel is fought with deadly weapons, that is, with such arms as are capable of inflicting severe wounds, so that there is serious danger of grave wound or mutilation or death. There is no duel, therefore, if one fights with weapons that cannot do serious harm (such as fists, light sticks, mud), or if by agreement one uses dangerous weapons in a way that precludes injury (e.g., by padding the edge of one’s sword, loading one’s revolver with blanks, firing into the air, as in sham or mock duels). But academic duels, in which students try to stab each other in the face with small daggers, are true duels; for, while the fighters are well protected in vital parts and serious or fatal wounds rarely happen, it remains true that this manner of fighting is mortally dangerous. The same remark applies to duels fought on condition that only one or two rounds of shots shall be fired, or that fighting shall cease as soon as blood has been drawn.

(e) A duel is fought for the purpose of settling a private quarrel. A hand-to-hand combat during battle between two soldiers of contending armies is not a duel in the proper sense of the word, since there is no private quarrel between them, but only the public quarrel of their countries.

The Morality of Duelling.—(a) Generally, the duel is mortally sinful. Like ordinary fighting, it is against charity, and in addition it includes a will to kill or gravely injure another, to expose one’s own life or limb to chance, and to usurp the function of the State. This applies to the challenged as well as to the challenger, for one can decline the combat to which one is dared.

(b) Exceptionally, a duel would not be sinful, if it took on the character of a war, or of self-defense against an unjust aggressor. Thus, in order to shorten a war or to lessen the bloodshed, it might be lawful to make the whole issue depend on a single combat between the commanders or between champions chosen from opposing armies, as in the case of David and Goliath (I Kings, xvii); but in modern times such a practice has been abandoned. Again, if a person had to choose between certain death, if he refused a duel, and possible death, if he consented to a duel, it would seem that he is in the position of one attacked by an unjust aggressor; but it is not easy to picture such a case as happening in normal conditions.

The Fallacy of the Arguments for Duelling.—(a) The amusement of the spectators was the purpose of the gladiatorial duels fought in ancient Rome. But today there is no one who would not grant that the butchering of human beings to make a holiday for the populace is savagery.

(b) The decision of doubtful cases before the courts was the purpose of the judicial duels fought among the Germans and Lombards in the early Middle Ages. But manifestly such duels are a temptation of God, since they rashly call on Him to disclose, through a duel between the litigants, what the evidence in court did not disclose. The outcome of the duel shows which party is stronger or more skilful, not which is in the right.

(c) Training in bravery and the termination of serious differences is the excuse offered for military and university duels. But to kill, cripple, or brutalize youth does not make the nation stronger, and the substitution of violence for law as a means of settling disputes is an encouragement to crime.

(d) Satisfaction for insults or other injury, or the avoidance of the reputation of being a coward, is the reason given for so-called affairs of honor. But is it not a superstition and a relic of barbarism to think that dishonor is wiped out by a dishonorable fight, or that a person shows himself brave because he lacks the moral bravery to act against the wrong opinions of the multitude?

Penalties against Duelling.—(a) Church law deprives of ecclesiastical burial those who die as the result of a duel, if unrepentant (Canon 1240); it also declares excommunication reserved simply to the Holy See and infamy against duellists and their helpers (Canon 2351). (b) Civil law in English-speaking countries makes duelling a crime. If death results, it is regarded as murder, and the seconds are liable to punishment as accessories.

What is the moral duty of restitution on account of injuries caused in a duel? (a) The challenger and his heirs have no right to restitution. (b) The challenged, if he accepted willingly, has no right to restitution, for his free acceptance of the fight implies the cession of such a right. (c) The challenged, if he accepted under grave compulsion, has the right to restitution. If he is wounded, the aggressor should pay the medical expense; if he is killed, the heirs should be compensated.

What is a duel? A duel strictly so called, and as it is prohibited by canon law with grave penalties, is a fight between two or a few, undertaken by private authority and by agreement, with danger of killing, mutilation, or grave wound.

Between two or a few, namely in equal number; and thus it is distinguished from war, which is of many against many. By private authority, for by public authority, such as that of David with the giant Goliath, and of the Horatii with the Curiatii, it is lawful, since a fight of a few is no less lawful than of many, if each is undertaken by public authority for the common good. By agreement, namely an agreement which by common consent indicates place and time, and thus it is distinguished from a brawl, which supposes no preceding pact. The weapons also must be designated for the penalties to be incurred. For this is the ordinary custom of duels, that weapons also be designated. Therefore the Roman Pontiffs, prohibiting duel and establishing penalties against duellists, are to be judged to be speaking of such a fight, a detestable practice, although they make mention only of agreement, a fixed time, and an appointed place. Gregory XIII, C. Ad tollendum, a. 1582. With danger, etc., so that all those fights unsuited to inflicting grave injury are excluded from the notion of duel strictly such, such as those which are done with light rods or other instruments not ordered to killing or gravely wounding, although in such a fight one is injured per accidens. Hence it is clear that one acts unlawfully indeed and sins mortally, but nevertheless it is not a duel strictly so called, and consequently not subject to the penalties of law, when two men, burning suddenly with anger because of an injury, and provoking each other to a fight, suddenly engage, although from the same impulse of anger and vengeance they immediately go together to some suitable place for this. The reason is that thus the provocation and fight are not morally two actions, but only one, and therefore it is not properly a fight from a previous agreement or designation of time and place. Struggl 55 seqq.; Sanch. in Decal. l. 2, c. 39, aa. 13, 14; La-Croix l. 3, p. 1, n. 843 seqq.; L. 399, 401.

Is a duel lawful? - Duel is intrinsically evil and mortal. Proof: 1. For it is contrary to natural law knowingly and by private authority to expose oneself and another to the proximate danger of killing, mutilation, or wound; for the right of God is usurped, who alone is Lord of life. 2. Trent, s. 25, C. 19 de R., teaches "that the detestable practice of duels was introduced by the devil's contrivance, so that from the bloody death of bodies he may also gain the ruin of souls." Leo XIII, Letter Pastoralis officii, 12 Sept. 1891; C. 1, 2 de Cler. pug. in duel.; L. 399, 400, 401; E. M.

You will resolve: It is not lawful to accept a duel lest someone incur a mark of timidity and disgrace among others. Indeed neither is it lawful to accept it although he would be deprived of office and sustenance. For what is intrinsically evil can never be lawful. But if it is unlawful to accept a duel in cases of this sort, much more is it unlawful to offer it. C. 1, 2 de Torneam.; Extr. un. de Torneam. Cf. prop. 2 condemned by Alexander VII, and props. condemned by Benedict XIV, C. Detestabilem, a. 1752; L. 400, 401; E. M.

Is a duel unlawful also if the condition is added that it be ended after the first blows have been inflicted; or if someone only simulates it, although he knows certainly that the fight will not follow? R. Affirmatively; for as to the first, even in that case there is present the greatest danger of a lethal wound, as experience itself establishes. Besides, Clement VIII in Bull Illius vices, a. 1592, has this: "By Apostolic authority and by the tenor of the present letters we decree and declare... that those between whom agreements have been entered concerning ending the contest as soon as either has been wounded, or has shed blood, or a certain number of blows has been inflicted on each side, are held by the same penalties" of the other Pontiffs. Besides, that kind of duel creates scandal and gives occasion to fatal duels. As to the other, because then someone sins by furnishing at least to the other scandal and an occasion of sin. Besides, he sins by furnishing also to others scandal and occasion of sin; for those who undertake a duel in the designated place can rightly be believed by others to be combatants in a duel. Besides, the laws of the Church not only prohibit killings, but also intend to exterminate the detestable practice of duels; but even fictitious duels are contrary to this end. Reuter p. 3, n. 380.

If a duel is commanded to two guilty men condemned to death, with pardon of life promised to the victor, this indeed on the part of the magistrate would be altogether unlawful, by reason of scandal and by reason of the dishonorable end, which can scarcely be absent. But on the part of the duellists it would be lawful to them; for by reason of vindicative justice they are lawfully killed and kill. La-Croix l. 4, n. 1497.

Can a duel at least sometimes be lawful? - A duel indeed is lawful in all those cases in which the matter concerns defense of oneself against an aggressor; for then in reality it is not to make a duel, but to repel force by force, which all laws concede. Hence Struggl n. 65 says that "a duel can become lawful if a duel necessarily had to be undertaken against an unjust aggressor for the defense of life, or of immense goods; as if someone should actually threaten you with certain death, the plundering of goods, or the burning of a house, unless you actually enter into duel with him.

For it is lawful to defend oneself against an unjust aggressor of life and of immense goods, which are irrecoverable by another way." And where the matter is not about defending life itself and goods, but about defending honor itself, the same theologian had previously handed down these things, n. 61: "If therefore one provoked to a duel is a noble man, knight, or soldier, to whom flight from the provoker and actual aggressor would be very disgraceful, it is lawful for him to say to the one provoking, even while grasping a sword in hand: I will defend myself with this sword, wherever you have sought me, which I will also furnish here if you have attacked me; but to go out to an agreed place is not the act of a Christian man, as being against the law of nature, of God, and of the Church. The reason is that such a man is not bound from charity to flee with so grave an inconvenience of honor and mark of timidity; and therefore he can lawfully stand and defend himself by standing. For thus before an actual duel he would conduct himself merely defensively. Yet if from flight there would not threaten to some other man danger of wounding from behind, or grave disgrace, he would be bound to flee; as La-Croix 841 teaches with others."

You will resolve: In a just war it is lawful to fight in open warfare, and to use ambushes and stratagems. These are not reputed lies, because the adversaries are deceived by their own fault, since those means are customarily used in war. But deceits are unlawful which cannot be guarded against by prudence. It is lawful to deprive cities of water; but it is not lawful to infect wells and fountains with poison, or otherwise to use methods of bringing slaughter which can be avoided by no human prudence, or which bring grave harm even to the innocent, or which savor of cruelty and atrocity, S. Th. 2. 2, q. 108, a. 2 ad 3; much less indeed is it lawful directly to kill the innocent, legates, cf. 737, who by the law of nations are everywhere inviolable, and likewise to suborn assassins who secretly butcher the Prince or commander of the army.

Therefore the use of any kind of weapons is lawful, provided that these are not poisoned, or lethal in another similar way. It is lawful to besiege cities and citadels, to discharge artillery against them, indeed sometimes to destroy or burn monasteries and churches, to plunder and kill in them, if, for example, enemies use a church as a citadel for defending themselves.

To use the standards of enemies in order to deceive enemies is a very true lie of fact.

Scouts also, who are sent to enemies under the appearance of friends or by another fictitious reason, and approach them asking, for example, medicines which they do not need, are not even free from a lie.

Lying, deceit, fraud are never lawful. Likewise it is sometimes lawful to give a captured city to plunder, but only for most grave reasons. This, however, is not lawful for soldiers by their own authority, but it is necessary that legitimate permission be present. And then it is in no way lawful directly to kill the innocent, under whose name come children, women, the elderly, foreigners, clerics, peasants, merchants, etc., because these have committed nothing on account of which they could be deprived of life, nor are they actual or proximate aggressors. Moreover it is not lawful per se to despoil innocent foreigners even of goods, because they are guilty neither in themselves nor in society. Likewise, when a city is given to plunder, monasteries, churches, and pious places are always excepted. C. 2 de Treg. et pac. But immovable goods by the law of war fall to the Prince or commonwealth; movable goods of use become the property of the first taker, unless custom or law is that a part fall to the Prince and community, or all be placed in common, and distribution be made to individuals with due proportion. Besides spoils, reprisals also are lawful; they are occupation by force made and retention of persons or things of enemies, which by chance or by design come into the hands of the other party, since they are certain compensations and a kind of war. They are lawful, if however: 1. It is manifestly established that citizens of the other commonwealth have done an injury. 2. If their superiors, when asked, refuse to administer justice. 3. If it is established that they culpably refuse this. 4. If the supreme Prince, the cause having been known, concedes this. 5. If no more damage is inflicted than just satisfaction requires. 6. If they are not committed against ecclesiastical persons; C. Etsi unic., de Iniur. in 6. In the conflict itself or attack it is lawful to kill all fighting against one, or existing in arms, of whatever condition, state, or sex, until they give themselves as captives, and perfect victory is obtained. But after the conflict and victory obtained, it is sometimes lawful also to kill captured or surrendered guilty persons, namely if before this they have merited death by some crime; or if this is necessary for establishing peace and security or justly vindicating the injury, unless they have surrendered with a pact of life to be preserved; or unless they are clerics, even guilty, whom after the conflict it is in no way lawful for a secular Prince to kill because of their immunity. But since soldiers today are regularly compelled and not voluntary, they also are to be held as innocent, whom it is not lawful to kill after conflict. 1 Kings 30; C. Miles 13, c. 23, q. 5; L. 409, 410; Struggl 47 seqq.; Ithur. Cas. 40, nn. 14, 17; Laym. l. 2, tr. 3, c. 12, nn. 7, 9 seqq.; S. Th. 2. 2, q. 40, a. 3; q. 66, a. 8 ad 1; q. 108, a. 1 ad 5.

Whether he is bound to anything who kills another in a duel? - Resp. Negatively, more probably, whether he was the challenger or the challenged. For the one himself who was killed, by consenting to the duel, placed by his consent the whole necessary and sufficient cause of those damages. Except unless he induced the other by force or grave threats, and thus as though coerced him. L. 638.

What is to be said about suicides and duellists? As regards suicides, the Holy Office, May 16, 1866, has these things: "When it is certainly established either concerning anger or despair, ecclesiastical burial must be denied and the pomps and solemnities of exequies must be avoided; but when insanity is certainly established, ecclesiastical burial is given with the solemnities of exequies; yet when doubt remains whether someone gave death to himself through despair or through insanity, ecclesiastical burial can be given, with the pomps and solemnities of exequies nevertheless avoided."

Duellists, according to Benedict XIV, constitution Detestabilem, sec. 9, are deprived of ecclesiastical burial, although they have been absolved, and even before the sentence of a judge, whether they die in the place of the duel or afterwards outside that place. But duellists do not incur the penalties of duellists because of an unexpected encounter, although those fighting, from the same impulse of quarrel, have gone equally to some suitable place. S.C.C., October 5, 1744; E.M.

III. Those perpetrating a duel, or simply provoking to it, or accepting it, and any accomplices furnishing any work or favor whatsoever; and also those deliberately watching it, and those permitting it, or, insofar as it is in them, not prohibiting it, of whatever dignity they may be, even royal or imperial.

A duel, insofar as it is punished by this penalty of excommunication, is an illicit war or fight of two persons, by agreement, at an appointed time, in an agreed place, and with lethal and equal arms, even if "it has been agreed that not individuals with individuals, but two, three, or more on each side, should fight," Clement VIII, constitution Illius vices, secs. 3, 5, namely one against one, even if several have successively engaged with the same person. Those perpetrating a duel, i.e., those committing a duel, whether privately or publicly, namely with seconds employed, placards affixed and signed, or a libel of provocation, etc. Also comprehended here are those among whom agreements have been entered about ending the contest as soon as either one has been wounded, or has shed blood, or a certain number of blows has been inflicted by each side. For these truly perpetrate a duel, provided nevertheless that the duel is of itself lethal. Simply provoking to it, whether they provoke by writing or another exterior sign. The present excommunication is incurred even if the duel does not in fact follow, nor the approach, nor any other act proximate to the fight. For since it is said, simply provoking, the censure is imposed precisely because of the provocation, and not also because of the duel. Accepting it: the same observation must be made as for those provoking.

Any accomplices, or those furnishing any work or favor whatsoever. Therefore those commanding, giving counsel, accompanying, messengers, those dictating provocative libels, or writing or affixing them; seconds, witnesses, masters of arms, etc., are excommunicated. But whether accomplices and cooperators incur excommunication if the fight is not brought to effect? Some affirm; others deny; for then it is not verified that they were accomplices and cooperators of a duel. Deliberately watching, i.e., those who intentionally go to the place of the duel and assist at the duel. Hence one who, passing by the place of the duel by the way and by chance, looks, led by curiosity, does not incur excommunication. Likewise those who watch from afar, or in secret, or in another way inducing nothing toward sharpening the fight, do not seem to incur this excommunication. Finally, one who goes to the place of the duel in order to impede it does not incur this excommunication, for they furnish a very good thing. Those permitting it, or, insofar as it is in them, not impeding it: therefore those civil or military authorities who, when they can, by no means impede a duel are subject to this excommunication. Temporal lords, not prohibiting them in their lands, etc. Gregory XII, constitution Ad tollendum; Clement VIII, constitution Illius vices; Benedict XIV, constitution Detestabilem; L. 220; Reiffenstuel, book 5, title 14; Schmalzgrueber, book 5, title 14; Lugo, Resp. Mor., book 2, disp. 1, 2; Bonacina, disp. 2, q. 3, part 48; E.M.

What about other books of special subject matter? "Books are condemned in which God, or the Blessed Virgin Mary, or the Saints, or the Catholic Church and her worship, or the sacraments, or the Apostolic See, are disparaged. Works in which the concept of the inspiration of Sacred Scripture is perverted, or its extension is too much restricted, are subject to the same judgment of reprobation. Books also are prohibited which deliberately afflict the ecclesiastical hierarchy, or the clerical or religious state, with insults." § 11. Books of any authors whatsoever, whether non-Catholic or Catholic. Disparage: namely speak ill, although not explicitly, but in grave matter. Inspiration of Sacred Scripture, which, "written under the inspiration of the Holy Spirit, has God as author." Vatican Council, Constitution Dei Filius, chap. 2; Decree of the Holy Office Lamentabili, July 3, 1907, prop. 9. Is perverted: if, for example, the concept of inspiration were constituted in a subsequent approval of the Sacred Books by the Church; or in a certain concomitant direction of the Holy Spirit, if necessity demands; or in divine assistance for preventing errors. Cited Decree, props. 10, 12, 19, 20. Is restricted: namely to only some books of Sacred Scripture, not to all; or to only some part of the books, not to the entire books; or only to dogmas of faith and morals, not also to the remaining matters, to historical matters, to profane matters, to matters pertaining to the natural sciences; or only to matters concerning which they treat explicitly, not also to others said only incidentally. Cited Decree, prop. 11. Deliberately: and therefore not if there is only some injurious expression, but if either the whole book, or a notable part of it, or some entire chapter afflicts the ecclesiastical hierarchy, or the clerical or religious state with insults; not some private person, unless from this vituperation turns against the hierarchical order itself, or a part of it, or against the clerical or religious state itself. "Let it be forbidden to edit, read, or retain books in which sorceries, divination, magic, evocation of spirits, and other superstitions of this kind are taught or commended." § 12. Are taught, for exercising them. Are taught or commended: not if they merely narrate superstitious facts, or treat or discourse concerning them, for reproving them and showing their malice and danger. "Books or writings which narrate new apparitions, revelations, visions, prophecies, miracles, or which introduce new devotions, even under the pretext that they are private, if they are published without legitimate permission of the Superiors of the Church, are proscribed." § 13. Writings, although they are not books, but booklets or leaves; although they are manuscripts, for they are most properly writings. If they are published: therefore the prohibition does not affect books published before this Constitution. Without legitimate permission: if this is had, it now no longer seems to be required, by force of the present Constitution, that there be a protestation according to the Decree of Urban VIII. But cf. what is had here at the end of the number. Without legitimate, etc. All books concerning sacred things and morals are indeed to be subjected to ecclesiastical censure so that they may be licitly edited; but not for that reason are all prohibited if they have been edited without legitimate approval, § 41; while on the contrary books of which there is question in this paragraph, published without permission of the superiors of the Church, are proscribed, and consequently can neither be read nor retained. Cf. 1306. "Likewise books are prohibited which establish as lawful duel, suicide, or divorce; which treat of masonic sects or other societies of the same kind, and contend that they are useful and not pernicious to the Church and civil society; and which defend errors proscribed by the Apostolic See." § 14. Books of authors of any kind, non-Catholics or Catholics. Establish, contend, defend: therefore they do this not incidentally but deliberately. Errors proscribed by the Apostolic See, e.g., errors proscribed in the Syllabus. Sacred Congregation of the Index, May 23, 1898. E.M. "Concerning sacred Relics these things are to be held. If Bishops, who alone can in this matter, know certainly that a Relic is spurious, let them remove it from the worship of the faithful. If the authenticating documents of some Relic, perhaps because of civil disturbances or from any other case, have perished, let it not be proposed publicly unless duly recognized by the Bishop. The argument of prescription or of founded presumption will then only be valid if the cult is commended by antiquity; namely according to the decree issued in the year 1896 by the sacred Council for examining indulgences and sacred Relics, by which it is declared: Ancient Relics are to be preserved in that veneration in which they have been up to now, unless in a particular case certain arguments are present that they are false or supposititious. But when there has been a judgment concerning pious traditions, it is necessary to remember this: the Church uses so great prudence in this matter that she does not permit traditions of this sort even to be narrated in writing unless much caution has been employed and the declaration sanctioned by Urban VIII has been prefaced; and although this is duly done, nevertheless she does not assert the truth of the fact, but, unless human arguments for believing are lacking, only does not prohibit it from being believed.

Thus plainly the sacred Council for guarding legitimate rites, thirty years ago, declared by Decree of May 2, 1877: Apparitions or revelations of this kind have neither been approved nor condemned by the Apostolic See, but have only been permitted as piously believable by human faith alone, according to the tradition which they bear, confirmed also by suitable testimonies and records. He who holds this will be free from every fear. For the religion of any apparition, insofar as it regards the fact itself and is called relative, always has the implicit condition concerning the truth of the fact; but insofar as it is absolute, it always rests on truth, for it is borne toward the very persons of the Saints who are honored. Similarly it must be affirmed concerning Relics. Finally We entrust this to the Council of vigilance, that they assiduously and diligently keep their eyes also on social institutions and on any writings concerning the social matter, lest anything of modernism lie hidden in them, but that they correspond to the precepts of the Roman Pontiffs." Pius X, Encyclical Letter Pascendi dominici gregis, September 8, 1907.

From defect of good reputation all infamous persons are irregular, chap. Infames 17, causa 6, q. 1, whether the infamy is of fact or of law. Infamy of fact is had in two ways. It is had first through the confession of the accused in judgment, or through at least a declaratory sentence of a judge concerning a crime inferring infamy among honest and upright men, although no infamy is expressly noted in Law. Second, infamy of fact is merely of fact, or popular, and it is likewise from any public crime and from the condition or office of the person obscuring him and rendering him base in the common estimation of men, even without any judicial act. Infamy of law is also had in two ways. For it is had first through a sentence of a judge inflicting the mark of infamy. It is had second without sentence of a judge, by the Law itself, by which the mark of infamy is inflicted; namely, from crime or from the condition of the person it is noted in Law as staining and infaming. Infamy of fact properly renders one unworthy; infamy of law properly renders one irregular; and it is this which properly induces a canonical impediment.

Infamy by the law itself is had first through a qualified, evident, and public delict, or at least one so notorious that it cannot be hidden by any evasion, or when the sentence of a judge accedes, declaring or imposing the penalty of infamy. Qualified, i.e., to which infamy is annexed by Law, either by that very fact or after sentence of a judge. But the crimes to which infamy is annexed by law are the giving of gifts by regulars against the Constitution of Clement VIII Religiosae Congregationes, June 19, 1594; theft; homicide; sacrilegious homicide, chap. Petrus 17, de Homic.; perjury made in judgment; apostasy from the faith, heresy, chap. Excommunicamus 13, § 5, de Haeret.; simony; to practice sodomy, St. Pius V, Constitution Horrendum illud, August 30, 1568; the crime of lese-majesty, chap. Felicis 5, de Poenis in 6; adultery; incest, chap. Coniunctiones 2, q. 2, can. 35; bigamy, chap. Nuper 4, de Bigamis; betrayal; robbery; procuring; the exercise of usuries; Lateran Council II, can. 13; invasion of Cardinals, cited chap. Felicis, or of Bishops; abduction of women, or cooperation toward it, Trent, sess. 24, chap. 6, de Ref.; duel, as regards duellists and their seconds, not others, Trent, sess. 25, chap. 19, de Ref.; preparation of arms against parents; the exercise of actors with shameful representations, so that it is not done without mortal sin; not likewise the trade of butcher, executioner, lictor, etc., since these offices can well be exercised without sin; and other things which induce infamy from Law. Cf. Suarez, de Simon., book 4, chap. 56, n. 21; La-Croix 562 ff.; Salm., chap. 8, n. 78 ff.; Pichler, book 1, tit. 11, n. 21; Trent, sess. 24, chap. 6, de Ref. Matr., sess. 25, chap. 19, de Ref.; Can. 6, q. 1, chap. 17; chap. 4 and final, de Temp. ordin.

Second, irregularity can be incurred by the law itself because of another's infamy, as is incurred by the sons of those who have been condemned for the delict of lese-majesty, the sons born from a prostitute, the sons of heretics, and also grandchildren descending from them through the male line, provided nevertheless that it is notorious that the parents were heretics and died in heresy. Chap. 2, § 2, chap. 15, de haeret. in 6. But in order that all these incur irregularity, it is necessary that they were born after the delict. Sanchez, book 2, chap. 27, n. 14. Benedict XIV, de Syn., book 13, chap. 24, n. 21, reports the Constitution In quibusdam, de Poenis, in which the sons of a patron killing the rector of a Church, up to the fourth generation, become irregular beyond the loss of the right of patronage for all. The sons also and grandsons of those attacking or striking Cardinals of the Holy Roman Church are prohibited from receiving and exercising orders. Constitution Felicis 12, de Poenis. But this is valid only concerning sons born after the crime committed by the father. L., book 1, de His qui not. inf.; Lugo, de Fide, disp. 23, sect. 4; Resp. Mor., book 2, dub. 12; Benedict XIV, Quaest. can., q. 449; Bizzarri, p. 470 ff.

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.

Duel in general is the fight of two or of a few among themselves. In the stricter sense it is a dangerous fight of two from a preceding agreement concerning place, time, and arms.

Duel is: 1. public or private, according as it is done by public authority or not; 2. solemn or simple, according as it is done before witnesses or with these omitted.

404. Principles. - I. A duel undertaken by public authority is lawful if it is done for the common good, for example so that war may be ended ¹; otherwise, if it is commanded or permitted for other causes ². The reason of each is manifest.

¹ Sanchez (In Dec., lib. 2, c. 39, n. 13-14) indicates another end, namely for preserving estimation among enemies, and lest the army fall in spirit. Bonacina (De Cens. in spec., disp. 2, q. 3, p. 58, n. 4) calls duels of this sort a part of war.

² Thus, for example, if it is done for the sake of spectacle and pleasure, or for vainly showing off the strength of soldiers (Sanchez, In Dec., lib. 2, c. 39, n. 12).

II. A duel undertaken by private authority can never be lawful. The reason is that it is opposed: 1. to natural law, since God has given dominion over one's own or another's life, nor over the members, to no man outside the case of defense against an actual aggressor; 2. to canon law, as is clear from Trent, sess. 25, cap. 19, where duel is called: "A detestable usage, introduced by the devil as fabricator." - St. Alphonsus, n. 399, 400.

405. Resolves. - 1. It is not lawful to accept a duel even for averting ignominy; because it is repugnant to reason to apply that cruel means with evident danger of one's own life or that of the neighbor, indeed even of eternal salvation, on account of a non-necessary or even useless end. True esteem, praise, and honor are not placed in the vain opinion of this world, whose wisdom before God is foolishness. - St. Alphonsus, Hom. apost., n. 27.

2. It is not lawful for a military man to accept a duel, even if for that reason he must yield his office necessary for the sustenance of himself and his own. The reason follows from what was said: for the killing of another by private authority is never lawful except against an actual aggressor with the moderation of blameless defense; but one provoking to a duel is not an actual aggressor.

3. It is not lawful to undertake a duel under this law, that when one has been wounded or a certain number of blows has been completed, the fight ceases; 1. because even in this there is the greatest danger of a lethal wound; 2. because Clement VIII prohibited even non-fatal duels; 3. because that kind of duel creates scandal and provides occasion for fatal duels.

4. It is not lawful to undertake a duel, even with public authority acceding, for knowing the truth, for proving innocence, or for ending a private lawsuit; because it is not a means ordered to these ends. Nor can the guilty be compelled to duel, even with hope of life given to the future victor. - St. Alphonsus, Hom. apost., ibid. ³.

³ St. Alphonsus in the cited place speaks only of the first part of this resolution. But as regards the last part (Theol. moral., lib. 3, n. 400), he reports the opposite opinion without any censure; but Laymann (lib. 3, tr. 3, p. 3, c. 5, §2), with other Doctors alleged, has these things as regards the judge: "Although, estimating the matter according to itself and speculatively, this does not seem alien to natural law, since it is nothing other than to decree each guilty person a minister of justice against the other, so that he may execute a just sentence of death; but to him who shall have prevailed, life is remitted; nevertheless on account of the adjoined circumstances it is not free from danger of scandal; wherefore it is neither expedient nor lawful." But as regards the guilty, he adds: "After the prince has conceded to the guilty a faculty of this sort of contending by duel, it seems lawful to accept it, not from hatred, but both from zeal for public justice and for the cause of saving one's own life."

5. But it is lawful to fight in a duel for mere defense, even by accepting arms from an adversary, if death is intended by him, or loss of goods is going to follow unless the fight is accepted, and there is no other way of escaping this danger; but it is not lawful to betake oneself to another place ⁴, or to appoint another determinate time for defense; because then a duel properly so called would be had.

⁴ Yet if death is intended against you unless you go immediately to another place where you can defend yourself, this circumstance does not seem to change the reason of the preceding resolution.

St. Alphonsus (lib. 3, n. 400), after he reported the opinion of several Doctors concerning the cause of loss of goods, adds that this opinion is no longer probable because of the first and fourth of the propositions proscribed by Benedict XIV and reported by the Author a little later. But it is not clear that this case is comprehended in them. For those propositions speak of a duel even to be offered; but here there is question only of acceptance for the necessary defense of goods of great moment from actual invasion. Moreover, everyone knows that the condemnation of a complex proposition by no means requires that all its members be judged false, but it is enough if either is found false; indeed the former would of itself lead to absurdity. For if, for example, you say: "The head was cut off from the holy Apostles Peter and Paul," from the condemnation it would have to be concluded that not even Paul's head was cut off, which is plainly false. Therefore that rule of logicians is to be kept religiously: of a condemned and therefore false proposition, what is to be held true is not indeed the contrary, but only the contradictory. Moreover, of a copulative proposition, of which sort are the first and fourth objected, the contradictory will be of this sort: Either to offer, or to accept a duel, etc., is illicit. But by force of that disjunctive thesis you would absurdly infer that each member of it at the same time is illicit. Therefore from the condemnation of those propositions nothing certainly can be drawn against that opinion, so that it can be called condemned.

Perhaps the condemnation of proposition 3 could more plausibly be objected, which establishes that the penalties issued against duelists are not incurred if a military commander or official accepts a duel from grave fear of loss of reputation or office. For mention of the one accepting only is made in it. But, to pass over other things for the moment, another reason, and indeed a twofold one, offers itself, on account of which the force of the objection is plainly blunted. The first is that nothing in that Proposition is said concerning actual invasion of goods; for this reason it pertains nothing to the present question. The other is that the Proposition could rightly have been condemned for this one thing alone, because it most falsely supposes that he who refuses a duel is gravely endangered in reputation. Therefore this Proposition also is objected in vain. And in reality Marcus Struggl, an eminent theologian from the Order of Servants of the Blessed Virgin Mary, after he most diligently weighed these Propositions also proscribed by Benedict XIV, nevertheless establishes (Th. Mor., tr. 7, q. 3, art. 6, n. 65) that "a duel can become lawful..., if against an unjust aggressor it must necessarily be undertaken for the defense of life or immense goods; as if someone were actually to intend certain death, plundering of goods, or burning of a house, unless you actually enter a duel with him; for it is lawful to defend oneself against an unjust aggressor of life and of immense goods irrecoverable by another way." From these things it appears that this doctrine scarcely, or not even scarcely, differs from that which the Author also proposes in the fifth and sixth resolutions, if indeed the question treated above (n. 397, Q. 4) concerning the defense of immense goods even with the killing of an unjust aggressor is recalled hither.

Therefore it must be concluded that it is certainly right for each one to inquire into reasons by which he may attack that opinion or whatever probability it has; but reasons of this sort ought plainly to be sought from elsewhere than from those proscribed Propositions.

6. They do not enter a duel properly so called, and consequently do not incur the excommunication reserved to the Pope and the other penalties inflicted by the Council of Trent on duelists, who, blazing up in sudden anger on account of an injury and challenging each other to a fight, immediately come together; because it is more truly a brawl, not a duel, which ought to happen from an agreement of place and time. And for the same cause, on account of an unforeseen encounter of this sort, the aforesaid penalties are not incurred, although the fighters from the same impulse of the brawl immediately betake themselves together to some suitable place. - S. Congr. 5 Octob. 1744. - Scavini. - St. Alphonsus, n. 401. - See Cases, n. 403 and following.

406. • Here it is useful to report the five propositions concerning duel condemned by Benedict XIV in the year 1752 in the Bull Detestabilem ⁵. They are the following:

⁵ Benedict XIV, §10 of this Constitution, earnestly beseeches princes and all magistrates that with every effort and constancy they vehemently oppose the license of duels. Then he warns the same persons that they should not think it enough that the horrendous crime has been proscribed by laws and most grave penalties added, unless they actively urge the execution of them and show themselves inexorable avengers of the crime. "For if they bear with delinquents either sluggishly, or punish them softly, they will pollute themselves with the crime of another and will constitute themselves guilty of all that blood."

Thus, with wisdom plainly divine, did the Roman Pontiff speak through that age in which this wicked crime was restrained in the whole Christian commonwealth by most just laws. But that in the course of time among certain nations the laws against this crime have been scraped from the codes, and indeed somewhere one is punished who, by refusing a duel, was unwilling to pollute himself with this crime, this openly makes clear that those nations, while with proud foolishness they think that they have attained the summit of civil perfection, have already fallen into that savage barbarity from which the Christian religion had led them out, and are moreover being plunged more deeply.

1. A military man who, unless he offers and accepts a duel, would be held as fearful, timid, abject, and unfit for military offices, and thereby would be deprived of the office by which he sustains himself and his own, or would have to lack perpetually the hope of a promotion otherwise owed and merited by him, would be free from fault and penalty, whether he offers or accepts the duel.

2. Those accepting a duel, or provoking to it, can be excused, even for the sake of protecting honor or avoiding human contempt, when they know certainly that the fight is not going to follow, as being prevented by others.

3. A commander or official of the military accepting a duel from grave fear of loss of reputation or office does not incur the ecclesiastical penalties issued against duelists.

4. It is lawful in the state of natural man to accept and offer a duel for preserving fortunes with honor, when by another remedy their loss cannot be driven away.

5. The asserted license for the state of nature can also be applied to the state of an ill-ordered commonwealth, in which, namely, either by negligence or by malice of the magistrate, justice is openly denied.

334. 1. Origin of the duel. Among the ancients there were no duels properly so called, for the sake of vindicating honor, but singular combats between leaders or soldiers of two armies for the purpose of putting an end to battle; thus David with Goliath, Menelaus with Paris, Hector with Ajax, Achilles with Hector, Turnus with Aeneas, the three Horatii with the Curiatii engaged. Besides, at Rome there flourished bloody fights of gladiators between captives or slaves, indeed sometimes between free men, for the sake of displaying strength. - In the Middle Ages judicial duels were in use, for the sake of ending a lawsuit, which seem to have been borrowed from the Germans and Lombards: namely, when full proof could not be brought before a judge, a duel between the litigants was often in use, with the magistrates approving that the matter be left to the judgment of God, according to this: if laws do not suffice, let us come to arms. - But tournaments held among knights differed from duels, since they were not undertaken with a hostile mind, but for the sake of exercise and for the display of fortitude.

¹ J. P. Pigna, Il duello, 1554; Boyssat, Recherches sur les duels, Lyon, 1610; J. Savaron, Traite contre les duels, Paris, 1610; F. Bacon, Charge concerning duels, 1614; Cockburn, History of duels, London, 1720; Basnage, Dissert. historique sur les duels, Basel, 1740; Stadler, S.J., Tr. de duello, Ingolstadt, 1751; F. Gorguereau, Le duel considere dans tous les rapports historiques, moraux et constitutionnels, Paris, 1791; Pinet, Du duel en jurisprudence, Paris, 1829; Cauchy, Du duel considere dans ses origines et dans l'etat actuel des moeurs, Paris, 1846; Mendez, Essai sur le duel, 1854; Millingen, History of duelling, London, 1841; Sabine, Notes on duel, Boston, 1859; Tavernier, Le duel, Paris, 1884; Letainturier-Fradin, Le duel a travers les ages, Paris, 1892.

But already from the sixteenth century duels properly so called, for the sake of vindicating honor, began to prevail; namely, if anything harmful to reputation or honor had been inflicted, nobles and military leaders judged that this could be vindicated only by arms and washed away by blood; for they thought that they did not carry swords in vain. This cruel custom indeed first began to flourish among nobles and soldiers, afterward also among men of the robe; holy men and some Princes indeed resisted it; but today among many Nations it still flourishes, especially among leaders, soldiers, or political men.²

² Since duels are not recounted in public documents, it is difficult to know how many there are in various regions. In France, besides duels held among soldiers, from the year 1878 to the year 1890 about 647 are counted, of which not a few (1/77) were lethal (in Garraud, Traite du Droit Penal, Paris, 1891, t. IV, p. 310; cf. Questions Actuelles, t. XIV, 1892, p. 162-163).

335. 2. Notion and species. (A) A duel, as it is understood today, is a singular combat between two or more, entered into by agreement, with arms apt for killing or gravely wounding. - Therefore three things are required for a duel: (a) a singular combat, which is entered upon between two, or between several, but one against another; it matters little with what intention it is done, for the sake of exercise, or of vengeance, or of repairing honor, or of showing fortitude; (b) entered into by agreement, in which the adversaries agree concerning time, place, and arms; hence if two immediately fight from an impulse of anger, or if one provokes and attacks another and the latter defends himself, it is not properly a duel; (c) arms apt for killing or gravely wounding; therefore it is not necessary that in fact death or a grave wound follow, but it suffices that of itself a grave wound can be inflicted; hence fights which are done with the fist, rods, staffs, or with a sword of blunted edge, under the condition that neither be lethally wounded, are not duels.

(B) A duel is public when it is entered into from public authority and on account of the public good, e.g., for ending a dispute between two nations; or private when it is undertaken in a private name. The former is licit, if it is done on account of the common good, for ending war, lest the blood of many be poured out: for if in war army can fight against army, leaders can agree that one fight against one, or a few against a few; today, however, singular combats of this kind have gone into disuse. But if it were entered into on account of a particular good, even with the authority of a judge, for vindicating injury or manifesting truth, it would be illicit, since other means are at hand for obtaining these ends. But the latter is a grave sin, as will be clear from the following proposition.

336. 3. Principle: A duel, entered into by private authority, is always of itself gravely illicit. It is certain.

It is proved: (A) By authority. For the Church has more than once reproved the duel as a grave crime; thus the Council of Trent imposed penalties against duelists, declared them excommunicated, and, if they died in the combat, judged them unworthy of the honor of ecclesiastical burial; it exposed its mind concerning the gravity of this sin by these words: "Let the detestable use of duels, introduced by the fabrication of the devil, so that by the bloody death of bodies it may gain also the destruction of souls, be utterly exterminated from the Christian world."¹ Benedict XIV enlarged and explained the Tridentine sanctions, exploding various reasons alleged by duelists.² The Code renewed the excommunication to be incurred by the very fact and simply reserved to the Supreme Pontiff, already issued by the Roman Pontiffs, against "those perpetrating a duel, or simply provoking to it or accepting it, or giving any assistance or favor whatever, and also those deliberately watching it, and those permitting it, or, as much as is in them, not prohibiting it, of whatever dignity they may be."³ Already Leo XIII, confirming the decrees of his Predecessors, had lucidly set forth how empty are the things which are customarily brought forward for defending or excusing the savage custom of the duel.¹

¹ Sess. XXV, cap. 19 de Reformatione.

² Constit. Detestabilem, Nov. 10, 1752, where he condemns the following propositions as false, scandalous, and pernicious:

1. "A military man who, unless he offers or accepts a duel, would be held as fearful, timid, abject, and unfit for military offices, and thence would be deprived of the office by which he sustains himself and his own, or would be bound perpetually to lack the hope of promotion otherwise due and deserved for him, would be free from fault and penalty, whether he offers or accepts a duel."

2. "Those accepting a duel, or provoking to it, can be excused, even for the sake of protecting honor or avoiding human contempt, when they know certainly that the fight is not going to follow, as being about to be impeded by others."

3. "A military leader or officer accepting a duel from grave fear of loss of reputation or office does not incur the ecclesiastical penalties issued against duelists."

4. "It is licit in the state of natural man to accept and offer a duel for preserving fortunes with honor, when by another remedy their loss cannot be repelled."

5. "The asserted license for the state of nature can also be applied to the state of a badly ordered city, in which, namely, either by negligence or by malice of the magistrate, justice is openly denied."

This manner of speaking indeed seems harsh; but it is therefore employed so that vain evasions may be forestalled; if the duel were permitted in these cases, empty reasons would soon be devised for excusing every duel.

³ Code, can. 2351. - With this excommunication are punished:

A) The duelists themselves, that is, those who perpetrate a duel; indeed, also he who provokes another to a duel, or who accepts, even if in reality the duel does not follow;

B) Those giving any assistance or favor whatever, that is, a) all and each who cooperate in any way with a duel. Thus: seconds, unless they accept this office with the intention and hope of altogether impeding the duel; - those ordering that a duel be done; - those persuading or advising, if the advice or reason was efficacious of itself, and the duel follows; - the physician who, asked by the duelists, assists at the duel; - the physician and confessor who, by agreement with the duelists, stand in a neighboring house or in a nearby place.

b) Those deliberately watching, even from mere curiosity, but not those who watch while passing by by chance, or in secret, nor those who go to the place of combat in order altogether to impede the duel;

c) Those positively permitting the duel, and indeed also those who, being endowed with authority, do not prohibit it, as much as is in them, when they ought and are able to prohibit it.

Cf. Treatise on Censures, n. 1182; J. Sole, De delictis et poenis, Rome, 1920, p. 320-325.

¹ Apostolic Letter Pastoralis officii, Sept. 12, 1891, to the bishops of the German and Austro-Hungarian empire.

337. (B) By reason. (a) For the duel by its nature directly tends to the killing or wounding of the adversary; certainly, as Leo XIII says (l. c.), "those who provoke to a private combat or accept one offered do this, and direct their mind and powers to this, bound by no necessity: to take away life or at least to inflict a wound upon the adversary"; now directly to intend this is a grave sin, from what has been said above, n. 312. - Nor can it validly be said that here there is question of the case of legitimate defense; for there is no urgent necessity, since the aggression, if there was any, is not actually existing but already past; on the other hand, recourse can be had either to judges or to upright men who can compose the matter peacefully; indeed recourse to arms cannot vindicate honor or reputation: "for although," Leo XIII continues, "he who, after receiving injury, has challenged to the combat, departs victor from the combat, this will be the judgment of all sensible men: by such an outcome of the combat, the challenger is proved indeed better in strength for wrestling, or in handling arms, but not for that reason better in honesty; but if the same man falls, to whom again would this manner of protecting honor not seem imprudent, not plainly absurd?" Therefore the duel can by no means be excused under the pretext of legitimate defense, especially because it often arises from a passion for revenge, which is especially opposed to Christian charity.

338. (b) Besides, he who undertakes a duel rashly casts his own life into grave and manifest danger; but the natural and divine law prohibits this, when otherwise there is no reason of office or charity which may persuade this rashness. And this manner of acting is to be reproved all the more because duelists bring damage not only upon themselves, but upon their own family, or that of the adversary: for if either one or both are wounded or killed, how many dissensions, envies, and miseries arise from this?

339. (c) Moreover, by duels the social order is disturbed; for if it is licit for each person to vindicate his own rights by private force and hand, and to avenge the honor which he thinks violated, it is finished with the legitimate authority of judges, and with the peace of families and society; force will be repelled by force, even outside the case of actual and unjust aggression, and thus the morals of Barbarians will begin to reign everywhere.

340. 4. The difficulties are solved. (a) Many indeed object that they cannot refuse an offered combat without being held as sluggish and cowardly.

Leo XIII, l. c., responds: "If the duties of men were to be measured from the false opinions of the crowd, not from the eternal norm of the right and just, there would be no natural and true distinction between honorable actions and shameful deeds. The wise men of the gentiles themselves both knew and taught that the fallacious judgments of the crowd are to be spurned by a brave and constant man." Certainly he exhibits greater fortitude who, obeying the voice of conscience, despises the empty judgments of the crowd, than he who, against the dictate of conscience, undertakes the offered combat lest he be despised by others.¹

¹ So that sensible men may more easily and efficaciously refuse the duel, it is altogether expedient that they be associated and bind themselves by pact to avoid all combats of this kind. This was already done in past centuries; cf. Faillon, Vie de M. Olier, 4th ed., Paris, 1873, t. II, p. 258.

341. (b) At least, not a few continue, duels must be permitted to soldiers, so that by such exercise military virtue may be sharpened, and at the same time an end may be imposed upon quarrels which otherwise would arise frequently among soldiers.

To this Leo XIII says: "The incentives of military virtue look to this, that the city be better prepared against enemies. But can this be effected by the help of that custom which by its own nature looks to this, that, when a disagreement has arisen among soldiers, of which the causes are not rare, from the individual parts of the defenders of the fatherland one or the other be killed?" - And indeed there are other means for composing disagreements,² namely the judgment of leaders or arbiters (jury d'honneur).

² Among some nations, e.g., the English, duels are strictly prohibited, and the mark of infamy is by no means branded upon those avoiding singular combat. Cf. Science Sociale, t. XXIV, 1897, p. 77-92.

342. (c) They insist: most duels are by no means dangerous, since the adversaries stop as soon as a light wound has been inflicted and the first drops of blood are shed.

It happens not rarely that, notwithstanding an agreement of this kind, a grave wound or death itself is inflicted in the heat of the fight. Besides, is it not ridiculous to agree upon such a condition? What special virtue is inherent in the first drops of blood, that they may vindicate the honor of the offended man? Is this not an ignoble vestige of a ruder age and foreign barbarity?

343. 5. On academic duels. In certain regions, especially in Germany, duels flourish which are called academic, in which, namely, students of the academies, using a certain small knife, try to inflict upon themselves an incision or wound in the face, the other parts of the body being well covered; in these, death or mutilation is not intended, nor always vengeance or reparation of honor, but often the display of fortitude and strength; very rarely does death or a grave wound follow from this. - Nevertheless the S. C. of the Council, having been questioned concerning this matter, on August 9, 1890, responded that irregularity is incurred in this case by the duelists and their seconds, from infamy of law.¹ From this it follows that contests of this kind truly are duels, since infamy of law is a penalty imposed by Trent upon duelists; in reality the conditions set forth above are found there: singular combat, entered into by agreement, with arms apt for gravely wounding; although death or mutilation rarely follows, nevertheless the danger of both is present.

¹ In Acta S. Sedis, XXIII, p. 242.

344. 6. Points to be noted for practice. Since duels in certain armies are sufficiently frequent, and are often imposed by commanders, there can be soldiers who unwillingly in good faith undertake a singular combat, whether they are ignorant of the censures attached to the same, or falsely persuade themselves that they cannot avoid such a fight; therefore it can happen that, on account of good faith, they are excused from censures or grave sin, from what was said in the Treatise on Human Acts, n. 94. Likewise, when they approach the sacred tribunal and otherwise are found well disposed, it is not always expedient that they be questioned specifically concerning the purpose of never refusing an offered combat; it suffices that in a general way they will to observe the divine and ecclesiastical laws. Cf. Treatise on Penance, n. 105. - On the other hand, account must be taken of the scandal which would be given if a Catholic soldier or commander accepted a duel.

What duel is? Which things are touched here

81. 1. Duel, namely undertaken on private authority; since it is established that other combats can be justified. Moreover, a duel is a dangerous combat of two persons (or of a few, equal in number), which is undertaken from agreement, or from a certain pact previously made concerning place, time, and also, at least as usage bears, concerning weapons, and these lethal. It is called dangerous insofar as it brings danger of life, of mutilation, or at least of grave wound.

What suicide is

2. Suicide, or the direct killing of oneself, done by one's own authority.

Divorce?

3. Divorce, namely in the modern acceptance, or perfect, by which is designated the sacrilegious attempt of breaking the bond of marriage, even consummated marriage, so that the faculty is given of entering a new marriage while the partner is living.

What if they are said to be lawful by accident?

4. Lawful: whether in themselves, or even in any case whatsoever or by accident. For the mind of the Legislator is clear, by which he wished to protect Catholic doctrine.

When they are established as lawful

5. They establish, that is, they do not merely assert, but contend that it is so, or attempt to demonstrate it;¹ and this with that breadth which satisfies the inscription of chapter 5. Cf. n. 74, 2.

¹ Cf. Gennari, cited place, p. 40.

4. DUELLING.—A duel is defined as a premeditated and pre-arranged combat with deadly weapons, between two persons, usually in the presence of witnesses, called seconds, for the purpose of deciding a quarrel, avenging an insult, or clearing the honor of one of the combatants, or of some third party, whose cause he has espoused.²⁶

²⁶ Slater, A Manual of Moral Theology, Vol. I, p. 316.

A duel, therefore, differs from an ordinary fight, from single combat (by which the fate of a battle is sometimes determined), and from the so-called mensuren of European students. The latter as a rule exclude the motive of revenge and serious danger to life, and are mere sports, though they sometimes degenerate into real duels and must be judged as such.

Duelling is in itself immoral because it is an illegitimate interference with God’s property right in human life.²⁷ It is a usurpation of justice, for which there is no legitimate excuse in a well-ordered State. As a means for deciding a quarrel or vindicating the honor of the combatants, it is totally inappropriate, because there is no intrinsic proportion between the means used and the end sought for.

²⁷ Ex. XX, 13; Deut. XXXII, 29; Wisd. XVI, 13 sq.; Rom. XIV, 7 sq.

A duel would be an appropriate means for the preservation of honor if, as the ancient pagans and not a few medieval Christians believed, it represented a sort of divine ordeal in which truth and justice always triumph. But this is not the case. In a duel the victory does not depend on the justice of one’s cause, or the probity of one’s character, but on such extrinsic factors as greater strength or superior skill in the handling of deadly weapons.

Duelling has been condemned as a detestable practice by the Council of Trent and the excommunication pronounced against the guilty parties, their seconds and abettors is renewed in the new Code of Canon Law. The latter also denies ecclesiastical burial to those who die as the result of a duel, unless they give signs of repentance before death, and refuses them public funeral services, exequial and anniversary masses.²⁸

²⁸ C. I. C., can. 2351, 1; 1240, 1, 4; 1241.

As duelling is not a common practice in English-speaking countries (for which this Moral Theology is intended) we need not enter into details. Under English and American law duelling is illegal, and if it results in death, it is regarded as murder, and the seconds are liable to punishment as accessories.²⁹

²⁹ Slater, Moral Theology, Vol. I, p. 318.

III. Ecclesiastical Penalties. 1. The duel is punished by excommunication simply reserved to the Roman Pontiff, which, from c. 2351, §1, strikes by the fact itself "those perpetrating a duel, or simply provoking to it, or accepting it, or furnishing any assistance or favor, and also those deliberately watching it and permitting it or, insofar as it is in them, not prohibiting it, of whatever dignity they may be." These words are almost identical with the words of the censure previously laid down in Const. Apostolicae Sedis, so that they must receive the same interpretation (cf. c. 6, 2°).

Therefore: The duel which is struck by censure supposes, according to the probable sentence, the agreement of place, time, and weapons. - Wherefore they escape the censure who, when an unforeseen conflict has arisen, from the same impulse of the quarrel go on equal terms to some suitable place in order to fight (S. C. October 15, 1711). But a duel to the first shedding of blood, or one which is finished by a certain number of blows, is struck, unless in reality, on account of precautions taken, the moral danger of a grave wound is absent. - Those perpetrating, provoking, accepting, are principally punished; wherefore those provoking and accepting are struck by the censure even if no fight has followed, provided the provocation or acceptance was not fictitious, but true, and they determine place, time, weapons, or accept these to be chosen by the adversary.

Accomplices, on the contrary, are struck secondarily. Wherefore it is necessary that the principal fact have happened, which, if there is question of spectators, cannot be unless the duel itself. Witnesses, seconds, etc., and also physicians and confessors furnish assistance or favor if, asked by the duelists, they are present even with the intention of shortening the fight, or curing wounds, or absolving. But not teachers of weapons, who merely teach the art of fighting to those by whom it has been determined to fight, nor drivers who carry duelists to the place of the fight, if thence the fight has not been made easier or more certain. - Deliberately watching are only those who by their presence add courage to the fighters or splendor to the fight and thus continue condemnable prejudices. - Permitting and not prohibiting are not private persons but public powers, civil or military, which either give positive license or, when they can, by no means impede the duel. - Of whatever dignity they may be: today from c. 2227, all persons, if you except only Cardinals, are affected by pontifical excommunications latae sententiae.

2. "Those dead in a duel or from a wound received thence" are deprived of ecclesiastical burial, and consequently of an exequial Mass and public funeral offices. But today, contrary to what was before the Code, this penalty ceases if, before death, they have given some sign of penitence (cc. 1240, 1241).

3. Duelists and their seconds are by the fact itself infamous (c. 2351, §2), and therefore are irregular from defect, incapable of benefices, etc., of legitimate acts, of the exercise of an ecclesiastical right or munus, and to be kept from ministry (cc. 984, 5°; 2293; 2294). But if homicide has been committed, they are besides irregular from delict (c. 985, 4°).

You Ask. whether duels which are called "American" are struck by ecclesiastical penalties.

They amount to this, that both adversaries expose themselves to the danger of death or of grave damage, whence one by chance perishes, the other by chance escapes unharmed: as if, of two lozenges, one is harmless, the other infected with poison, and both must consume one or the other.

Resp. Since they have no appearance of a fight, those duels are not affected by those penalties.

You Ask. concerning the so-called "measures" of youths who frequent the universities of Germany.

Those "measures" consist in this, that, well protected in the principal parts of the body, both youths attack one another with a certain small knife and strive to cut the face. The permanent trace of the wound then received is exhibited as something honorific and glorious.

When questioned by the Bishop of Wroclaw, the S. Congregation of the Council, on August 9, 1890, responded that those dueling in this way and their seconds become irregular from infamy of law.

The same S. Congregation declared to the Bishop of Regensburg, on February 10, 1923, that this resolution still stands, and he had at the same time alleged the scandals of a more benign sentence (A. A. S. XV (1923) 151; Per. XII, 51). Others present this declaration as extensive, given on account of the special circumstances of Germany, while others distinguish light "measures" from graver ones. They judge that only the graver ones, in which a probable danger of mutilation or of a grave wound is really had, are subject to the response. However the matter may be, one must strive for the complete suppression of all barbarity.

— In a matter which is not free from difficulty, it will be better first to report the things which are altogether certain.

Principle. An unjust killer or mutilator directly touches the very person whom he kills, wounds, etc., and, if he was a father of a family, also the per se cause of the support of the family properly so called: of wife and children. Hence he is per se injurious principally to the wounded man himself, and secondarily to his family. Hence various corollaries.

1. Nothing is owed from justice, on account of killing or wounding in a duel, unless the victor forced the other by force or threats to fight: no injury is done to one consenting.

Authors, after Lugo, d. 11, n. 66 ff., and St. Alphonsus, l. III, n. 638, obligate the challenger to repairing damages for the challenged man who was forced by common human respect to accept the duel. Yet against this obligation it can be objected: a) that the provocation itself is often commanded by the same human respect; b) that the cause of coercion in the proposed case is not the challenger himself but worldly prejudices. The challenger by his provocation gave occasion to human fear, but did not excite it. Cf. Noldin, II, 468, 6.

2. According to the common sentence, nothing is owed from justice if, before death, the wounded man remitted everything. For since the support of the family was not furnished except by the father willing it, the injury is not judged to have been done to the family in its goods except insofar as this lesion is repugnant to the will of the father. Yet a judicial action for obtaining compensation is not destroyed by this renunciation of the deceased.

3. These cases being excluded, by reason of the wounded or killed man himself, there is owed to him or to his heirs: a) for the body itself harmed, only that which the judge has defined; b) compensation of the foreseen spiritual damage, through suffrages and Masses of which, by the act of the killer, the victim was deprived; c) compensation of temporal damage: expenses for sickness; emergent damage or cessant profit from inability for work. - Funeral expenses per se are not to be restored, unless thence they have become greater than they otherwise would have been. - On account of the difficulty of estimation, a composition must be entered upon with those having the right.

4. To the wife and children, per se, only the support of which they are deprived through that death is certainly to be restored. Therefore if other goods are at hand for the family, if the widow has married well, nothing now will certainly be owed. For, in other respects, the killing is not injurious to the family.

5. Since a debtor is not the thing of creditors, his killing is not injurious to them: wherefore it is not certain that anything is owed to them. Nor does anything seem to be owed to a society which has insured the life, because with respect to the insuring society, the killer was not bound from justice to abstain from killing.

6. But if the killer wished directly to harm the creditors or the society, not a few then obligate him to make good the damage which they have suffered.

7. He who, unjustly attacked, has exceeded the moderation of blameless defense, will rarely be held to making any restitution on account of the damages thence following, both because the attacker himself voluntarily went into and accepted such danger, and because the one attacked usually committed the excess without full deliberation. Cf. Piscetta-Gennaro, III, 498.

Fuller Exposition of the Matter. "The resolution of this question is difficult on account of the arguments which can be made from every side, to which satisfaction cannot so easily be given" (Lugo, Iust., d. 11, n. 73).

1. Three Things Chiefly Are Asked.

a) Because, besides material damages of the economic order, homicide is also accustomed to bring detriments of the moral and superior order, authors on this occasion introduce the question concerning the obligation of compensating these latter detriments with money. This controversial question has already been solved negatively by us above, n. 587.

b) What real damages, and for whom, must be repaired by the homicide?

c) Does the universal condonation which, before death, the wounded man made, avail to take away fully every debt of justice?

2. On Material Damages to Be Repaired. a) Let us state the principles of solution. Homicide can be damnose to the killed man himself, before death; then to the family, heirs, and connected persons; then to many others, for example creditors, the poor, and pious works.

Whatever temporal damages, at least foreseen in a confused way, happened before death to the person killed, confer on him an active right, which enters his patrimony and, after his death, comes to the heirs and legatees like any other rights. Concerning this right and its transfer to successors, no doubt can or does arise.

Yet homicide is not injurious to the poor, to pious works, to creditors, nor to the family itself, except insofar as it wounds its right of sustenance to be obtained from the deceased. For the deceased was not the thing or slave of the poor or creditors, nor was he bound to live for their sake. Nor was he the thing of the family. Yet he was bound by a strict office of piety to support certain persons intimately connected to him, so that, if need should be, those persons would be permitted to seek that sustenance for themselves secretly from his patrimony. But the abundance of food which thus from the strict office of piety is owed to the family cannot be taken away without injury committed against it. Just as one who snatched a tutor from a ward would be injurious to the ward, so he who deprives a family of the natural provider of support violates the rights of the family damnously: which damage must be compensated to it. These things having been posited, we have whence we may understand and judge the various sentences.

b) Various Sentences. a) All material detriments, at least foreseen in a confused way, must be compensated to all who suffer them. Lugo (d. 11, n. 75) judges this sentence of several older authors and also of Vasquez (Restitutio, § 3, dub. 7) to be rather practically impossible than speculatively false. It is rejected by us because the first condition of restitution to be made is lacking: an action unjust to him who suffers the damage.

β) Many hold, and St. Alphonsus, L. 3, n. 631, has as certain, the sentence which obligates the homicide to restoring to necessary heirs and also to the wife all the profit which they would have made from the deceased surviving, according to a reasonable estimation of present hope. The reason brought forward is that that damage follows per se (Noldin, De praeceptis, 466), and that heirs have a right not to be cast down from this hope through homicide. But it would have to be demonstrated that homicide is unjust with respect to those persons, not only insofar as it takes away from them the author of owed support, but also the giver of an undue benefit. Since this is not proved, the proximity of the damage cannot beget the obligation of restitution. This is indirectly confirmed by the things which are had against the exception "per accidens" in Lugo, d. 11, n. 78.

Thinking this, Lehmkuhl, I, 1179, appeals to the absolute will by which the deceased intended to confer on those persons all the profit which, living, he would have obtained. That is, those persons would receive that emolument from the succession of the deceased. But this reason supposes that a right to those profits exists in the patrimony of the deceased to whom they succeed. Now, however, as Lessius observes, Iust., c. 9, n. 155, and after him Lugo, l. c., n. 78, the killed man never had a right to that restitution, "as one whose obligation arose after his death." Or otherwise, cessant profit now belongs to no one, and therefore is owed to no one for the time in which he exchanged temporal things for eternal.

Wherefore we rather adhere to those who circumscribe the obligation of restitution to owed support, insofar as those strictly connected persons are deprived of it through the death of the father or husband. Nor can the accidental will by which the deceased in fact intended to provide for another beloved person confer on this person a right to support.

We also observe that even the best authors speak rather confusedly concerning the quantity to be restored to necessary heirs. For while before they defined the quantity by every hoped-for emolument, afterwards, when they speak of causes excusing from this restitution, they bring forward things whence you would say that only support was owed. Cf. already Lugo, d. 11, nn. 87, 88; St. Alphonsus, l. III, n. 631; Noldin, II, 466, 2; Tanquerey, III, 566.

γ) When there is question of more remote heirs and of creditors, the opinion becomes more common which denies that anything is to be restored to them, whether because that damage follows per accidens, a reason which, being obscure, proves little if in fact the killer knew the consequence; - or because there is no certainty concerning the absolute will of the deceased (thus Lehmkuhl, I, 1180); - or, and this is our reason, because those emoluments are not in the patrimony of the deceased; and, as Lehmkuhl says, I, 1181, concerning creditors, "they have an action against the debtor and his things as long as he lives; they do not have a right that he continue to live."

δ) Not a few respond more severely if the homicide wished to harm creditors, because then, thus Lehmkuhl, I, 1180, that intention demonstrates foresight and attention to the nexus of causality. But, as Piscetta-Gennaro observe, III, 495, intention does not convert occasion into cause; that is, it cannot make an external action unjust. We did not deny the nexus of causality, but the causality is not demonstrated to have been unjust to the creditors.

Nor, contrary to what Piscetta-Gennaro think, III, 491, does it matter with what will the deceased was disposed, who perhaps can be considered as already paying, because by that will the deceased cannot acquire posthumous emoluments.

3. On the Efficacy of Condonation. Lugo, d. 11, n. 63, denies, with several, that the support owed to wife and children could have been condoned by the killed man, since these belong directly to those persons. But they do not belong to them unless the deceased was in reality furnishing that support, and therefore willed to furnish it. Wherefore with Lehmkuhl, I, 1181, and others, we judge that all things could validly have been remitted.

But do not confuse the condonation of injury as such with the remission of the debt of justice consequent upon it.

Heirs also preserve the action in the external forum which the civil law has attributed to them. But if a criminal action is instituted, and they do not use the faculty of seeking pecuniary compensation, the remission of that debt can rather easily be gathered thence, at least from a certain contempt. Thus it happens not rarely that a certain very modest sum of money, for example of one franc, is sought to affirm a right which, however, the party does not wish to use.

124. Definition. Dueling is a contest between two or a few persons, done by agreement concerning place, time, and lethal weapons (or at least weapons gravely wounding).

It is explained. For constituting a true duel, it makes no difference with what intention it was done, e.g., for the sake of vainglory, of saving honor, of preserving an office, of taking revenge. Hence in the definition nothing is said concerning intention. But it is said 1. a contest between two or a few, because a contest between two armies is no longer called a duel, but war. Although in ancient times duels were celebrated in such a way that on each side several persons fought at the same time, nevertheless today this mode of dueling is unusual, and a duel is always a strictly singular fight, i.e., between two persons.

It is said 2. from agreement concerning place, time, and weapons. This threefold agreement or pact is an essential condition of a duel. For if two fight from an impulse of anger or revenge, they are not in a duel, although perhaps they go to a determinate place for the sake of fighting. As to the third agreement or pact, namely concerning weapons, it is required and enough that the weapons be suited for inflicting a grave wound, e.g., a gun, revolver, sword, dagger (commonly, Rapier, Schläger), etc. Therefore it is not a duel which is done for exercise in certain schools of swordsmanship, or which is done with rods or sticks. But it is not required that a lethal wound be immediately inflicted by these weapons, nor that in the duel there be grave danger of death. It is enough that a grave wound can be inflicted. Hence even the so-called academic duels or "Mensuren, Bestimmungsmensuren," although in them directly lethal weapons are not employed, have been proscribed by the Church as true duels and are subject to the ecclesiastical penalties established against dueling.¹³³

Division. Dueling is divided a) into solemn or public and into private; b) into fatal and non-fatal. A solemn or public duel is that which in ancient times was had by public authority on account of the public good, e.g., for ending a dispute between two nations. A private duel is that which is undertaken in a private name, and indeed ordinarily for defending honor, as they say. Even in a private duel there are seconds and other assistants. A fatal duel is that which has or at least intends a fatal outcome, i.e., the death of one of the duelists; otherwise it is called a non-fatal duel.

¹³³ S. C. Conc., Aug. 9, 1890, Feb. 10, 1923, June 20, 1925 (Acta Ap. Sed. XV, 155 and XVIII, 137).

125. Principle. A duel undertaken by public authority for the common good is not morally evil; but one done by private authority is gravely illicit and induces grave ecclesiastical penalties.

It is proved. a) That a duel undertaken by public authority is lawful is plain of itself; for if from public authority army can fight against army on account of the common good, a fortiori (namely lest the blood of many be poured out) a singular fight in a duel can be permitted on account of the same common good. Thus at least of itself. Thus it was lawful that David fight with Goliath. But I say that this is lawful only for the common good. Hence duels of private men do not yet become licit if the legislative power of some region indulges private duels too much, because from these private duels no true utility arises for the common good, as in the fights of gladiators among the pagans.

b) Private dueling gravely opposes the law both natural and ecclesiastical, and also at least certain civil laws. And certainly it opposes natural law; for duelists "direct their mind and strength to this, bound by no necessity, that they take away life or at least inflict a wound upon the adversary."¹³⁴ Moreover, they expose themselves to danger of death or grave wounding without sufficient motive. For the motive of dueling ordinarily is honor to be saved. This motive, although it is not always the end of the worker, since he not rarely completes the duel compelled by harsh necessity, nevertheless is almost always the end of the work. No one of sound mind will say that honor, whether mine or another's, has been saved if I have killed or wounded the adversary, or, what is still clearer, if I myself have been killed or wounded. Therefore there is not a sufficient motive for making or accepting a duel and thus exposing oneself to grave danger. To this is added that from dueling very grave damages often arise, without any notable good following from it.¹³⁵

But since dueling is so damaging and irrational, ecclesiastical law has several times most severely prohibited it. Thus the Council of Trent¹³⁶ established: "Let the detestable use of duels, introduced by the contrivance of the devil, so that by the bloody death of bodies he may also gain the destruction of souls, be utterly exterminated from the Christian world. The emperor, kings ... and temporal lords by whatever other name, who shall have conceded a place for single combat [i.e., duel] in their lands among Christians, are by that very fact excommunicated.... But those who have entered upon the fight, and those who are called their seconds, incur the penalty of excommunication ... and of perpetual infamy, and ought to be punished as homicides according to the sacred canons; and if they die in the very conflict, let them perpetually lack ecclesiastical burial." The Council likewise punishes with excommunication those counseling or watching a duel. Benedict XIV enlarged and explained these Tridentine laws in the Constitution Detestabilem,¹³⁷ in which he condemns the following propositions as false, scandalous, and pernicious:

1. "A military man who, unless he offers or accepts a duel, would be held as fearful, timid, abject, and unfit for military offices, and from this would be deprived of the office by which he sustains himself and his own, or would have to lack perpetually the hope of promotion otherwise due and deserved for himself, would be free of fault and penalty, whether he offers or accepts the duel."

2. "Those accepting a duel, or provoking to it, can also be excused for the sake of protecting honor or avoiding human contempt, when they know certainly that the fight is not going to follow, since it is to be impeded by others."

3. "A commander or military official accepting a duel from grave fear of loss of reputation and office does not incur the ecclesiastical penalties established by the Church against duelists."

4. "It is lawful, in the state of natural man, to accept and offer a duel for preserving fortunes with honor, when the loss of them cannot be repelled by another remedy."

5. "The asserted license for the natural state can also be applied to the state of a badly ordered city, in which, namely, either by negligence or by malice of the magistrate, justice is openly denied."

From all these things it follows that a duel properly so called is never licit. Hence the sophisms which are often brought forward in its favor, and which were clearly and profoundly rejected by Leo XIII in the letter Pastoralis officii of Sept. 12, 1891, to the bishops of Germany and Austria, are to be made little of. But I say "a duel properly so called"; for if it is only a fight for defending oneself and one's goods against an unjust invader, then it is licit with the moderation of blameless defense, as is plain from the things said above, n. 120, concerning an unjust aggressor.

The civil laws of several nations also gravely prohibit dueling, e.g., in England and Austria.¹³⁸ In some regions, however, although dueling is prohibited of itself, nevertheless great connivance is employed toward those who nevertheless have perpetrated a duel.

¹³⁴ Leo XIII, apostolic letter Pastoralis officii, Sept. 12, 1891.

¹³⁵ Cajetan (In S. theol. 2, 2, q. 95, a. 8) treats acutely of the malice of dueling, concluding: "The nature of a duel is foreign to the nature of a just war, both defensive and vindicative. And therefore in no respect is a duel found to be a proportionate means for the ending of a dispute, whether civil or criminal. And because evils are not to be done that goods may come, let him rather suffer who cannot otherwise protect his rights." On the history of dueling, see Staatslexikon der Görres-Gesellschaft, s.v. "Zweikampf."

¹³⁶ Sess. 25, c. 19 de reform.

¹³⁷ Nov. 10, 1752; Denz. n. 1491-1498.

¹³⁸ Articles of war n. 101. Mandate of Emperor Charles, Nov. 4, 1917.

126. The ecclesiastical penalties against dueling are four:

a) They incur excommunication, to be incurred by the fact itself and simply reserved to the Holy See, "those who perpetrate a duel, or simply challenge to a duel, or accept it, or furnish any favor or assistance to it, and also those who intentionally watch it, or permit it or do not prohibit it so far as they can, of whatever dignity they may be."¹³⁹ By this excommunication six classes of persons are punished:

1. Those perpetrating a duel, even an academic duel or "Mensur";¹⁴⁰

2. Those challenging, namely seriously, even though afterward the duel itself does not follow.

3. Those accepting. Grave fear of losing an office does not excuse;¹⁴¹

4. Any who furnish favor, e.g., seconds, witnesses, physicians, those renting a house, provided nevertheless that the duel actually follows. For if the duel has been impeded on account of some cause, then the censure is not incurred by the seconds, witnesses, and physicians.¹⁴²

A physician and a priest can indeed licitly be called to him who has been wounded in a duel, but they cannot, by agreement, wait in a place near the duel in order more easily to help him who will be wounded. For this would make the duelists more courageous, and consequently would be the same as favoring the duel.¹⁴³

5. Those intentionally watching, i.e., those who openly and with explicit intention approach the place of the duel for the sake of watching, and thus make the duelists more courageous. Therefore he does not fall under the excommunication who by chance comes to the place of the duel and sees the duelists, or who, without the duelists knowing it, watches the fight from a hiding place.

6. Those permitting, i.e., those who can and ought from office to impede the duel and do not do it.

b) The duelists and their seconds are infamous by the fact itself.¹⁴⁴

c) He who kills or mutilates another in a duel incurs a twofold irregularity, namely from delict (of homicide) and from infamy of law. But he who has been wounded in a duel incurs only one irregularity, namely from infamy of law.¹⁴⁵

d) He who dies in the duel itself, or a little afterward from a wound received in the duel, cannot be given ecclesiastical burial unless he has given signs of penitence before death.¹⁴⁶ The ancient discipline, introduced by the Council of Trent and confirmed by Benedict XIV, never conceded ecclesiastical burial to those dead from a duel, even penitents.

¹³⁹ Code of Canon Law, c. 2351.

¹⁴⁰ S. C. Conc., Aug. 9, 1890, and Feb. 10, 1923.

¹⁴¹ Cf. above, prop. 1 and 3.

¹⁴² Hollweck, Kirchenrechtliche Strafgesetze p. 408.

¹⁴³ S. C. Inquis., May 28, 1884.

¹⁴⁴ Code of Canon Law, c. 2351, § 2.

¹⁴⁵ Thus the Council of Trent, l.c.; Code of Canon Law, c. 2351, § 2; S. C. Conc., Aug. 9, 1890.

¹⁴⁶ Code of Canon Law, c. 1240, § 1, n. 4.

127. Scholion 1. On societies fostering dueling. In some Universities there are accustomed to exist corporations of students which by force of statutes oblige to a duel when the case occurs. Certainly no Catholic young man can become a member of corporations of this kind unless a) there is a most urgent cause, and b) a founded hope is present that he will never be in the necessity of accepting a duel, and in fact will never accept a duel. If these two conditions are present, Catholic members of these corporations can sometimes be left in good faith.¹⁴⁷ But if someone says that this opinion is too lax, he is also bound to prohibit all Catholic young men from accepting the office of officer in certain modern armies, since even there every officer is obliged by force of statutes to a duel. But no theologian teaches this.

¹⁴⁷ Against this opinion see: Kirchl. Anzeiger f. d. Erzdiöz. Köln 1926, Nr. 45, 3, p. 36.

128. Scholion 2. On the obligation of restitution arising from a duel. It is not easy in practice to determine according to the principles concerning unjust damaging when from a duel which has been done there arises an obligation of restitution. Yet the following seem to be sufficiently certain: a) He who freely challenges another to a duel has no right to exact reparation for damages perhaps brought upon himself from the duel. Hence if he himself is wounded, he must bear all the expenses of the physician; if he dies, his heirs can reclaim nothing from the other duelist. b) He who indeed has been challenged by another to a duel, but freely and spontaneously accepts it, also has no right to any reparation of damage inflicted upon himself. For he is presumed to yield his right. c) He who has been challenged by another to a duel and accepts it only compelled by grave fear has a right that the other duelist repair all the damages arisen. Hence if he has been wounded, the challenger is bound to make good the expenses of treatment (unless nevertheless the wounded man forgives this explicitly or implicitly); but if he has died in the duel, then the challenger must repair to the heirs all the damages arisen from the duel and death. Deservedly Lehmkuhl¹⁴⁸ says: "Wherefore it is false that duelists are never held from justice to make compensation to the survivors."

¹⁴⁸ Theol. mor. I, n. 1182.

St. Alphonsus, I, 400; ed. G., I, p. 656; H. Ap., VIII, 27; Noldin, II, n. 347; Tanquerey, II, n. 145; Stimmen aus Maria-Laach, 1894, p. 345; Nouv. Rev. Theol., 22, p. 589; Linz. Quart. Schr., 49, p. 556; Berardi, Theol. mor., II, n. 698.

Definition. Duel in general is a fight of two or a few among themselves. In the stricter sense, DUEL is a fight of two or several equal in number, from a previous agreement concerning place, time, and weapons, with danger of killing, mutilation, or wounding.

In this matter, two things are essential: that the fight happen from agreement, and that the fighters use lethal weapons by which at least a grave wound can be inflicted, constituting an action gravely sinful. Duel, as it is prohibited by the Church, supposes danger of a grave wound. It does not seem to be essential that a space of time intervene. For some can from agreement at once take up arms (Lehmkuhl, Cas. consc., n. 521).

Hence, it is not a duel, but a brawl, when two from impulse of anger challenge themselves to a fight and immediately engage. Likewise excluded are fights unfitted for inflicting grave harm, such as those which happen with rods or a light staff (III, 401).

Division. Duel is distinguished as public or private, according as it is undertaken by public or private authority; solemn and simple, according as it is had either before witnesses, or, as they call them, seconds, or with these omitted.

A true duel and a fictitious duel could also be distinguished. A duel is feigned if provocation and acceptance are simulated, or if certain hope is present that the duel will truly be impeded, or if one fights for form's sake, without any danger of a wound. Those who undertake a fictitious duel indeed do not incur censures, but are not excused from sin, with the Constitution Detestabilem of Benedict XIV standing, and because of the reason of scandal (Genicot, I, 382). See what is to be said n. 747.

746. Principles. I. A duel undertaken by public authority is licit if it happens from a grave cause, on account of the common good. A grave reason is that on account of which David fought with Goliath, for ending a war with lesser shedding of blood. But this or a similar case excepted, a prince would sin mortally by permitting a duel, for example for ostentation, for spectacle, for vengeance, for ending a lawsuit, etc.; because in these circumstances there would be a tending to an evil end, or to a good end through a disproportionate and illegitimate means (Bouvier, de Decal., c. 5, a. 5).

Thus therefore ordeals, judgments of God, formerly commonly in force, are illicit, even if they were prescribed by public authority.

747. II. A duel undertaken by private authority can never be licit. The reason is because it is repugnant: 1. To natural right, since it is a usurpation of dominion over life and death, which belongs to God alone. - Even if it is admitted that in a private duel only danger of killing or wounding is present, natural right will always deny that such evil means can be used, which directly arise from the duel, and only in the estimation of fools can restore wounded honor. 2. To canonical right, from the constitutions of the Roman Pontiffs and from Trent (Sess. 25, c. 19), gravely admonishing: "Let the detestable abuse of duels, introduced by the devil's fabrication, so that through the bloody death of bodies he may gain the ruin of souls, be utterly exterminated from the Christian world."

Specifically Alexander VII condemned this second proposition: "A knight challenged to a duel can accept it, lest he incur a mark of timidity among others." Nevertheless since certain ones have existed who would pronounce duels licit at least in certain circumstances, namely: if one not accepting would be deprived of office and support, or would have to lack perpetually the hope of promotion otherwise due and deserved by him; - or if one accepting a duel or provoking to it knows certainly that the fight is not about to follow, as being about to be impeded by others; - or if a leader and military officer accepts a duel from grave fear of loss of reputation and office; - or if someone accepts in order to preserve fortunes with honor, when by another remedy their loss cannot be driven off; or in the case where no tribunal had been constituted, or justice was openly denied by the magistrate; - Benedict XIV, in the Bull Detestabilem of the year 1752, rejected, condemned, and prohibited all these assertions as false, scandalous, and pernicious (III, 400; 1. El. qq. ref., n. 97). Cf. the Letter of Leo XIII, Pastoralis officii, 12 Sept. 1891.

From these things conclude: 1. It is not licit to undertake a duel with this law, that when one is wounded the fight ceases; because, besides scandal, there is danger of a lethal wound. The Constitution Illius vices of Clement VIII, 17 Aug. 1592, also stands in the way.

2. Academic duels are prohibited. For in them the definition of duel is verified. A difficulty indeed can be moved from the fact that in academic duels danger of a grave wound is judged excluded; but the response is that the contest is nevertheless so instituted that of itself a grave wound can be inflicted. It is answered especially that the Church truly and properly equates these duels with lethal duels. For to the question of the Bishop of Breslau, who in a supplicatory libellus had set forth all things more minutely, the S. C. C. (9 Aug. 1890) responded: Duelists of this kind and their seconds are irregular from infamy of law. From which it follows: students dueling, committing the measure, are struck by the same penalties, to be cited below, and commit the same sin as others, for example soldiers, who from agreement fight among themselves with danger of killing. Cf. A. S. S., vol. 23, p. 242.²

3. It is licit to fight with an enemy, if he, determined to kill you or to take away from you things of great moment, from insolence concedes to you arms for defending yourself; for then it is true and legitimate defense: provided you cannot avoid the fight.

4. Likewise, one challenged to a duel can licitly respond: "I, as a Christian, cannot accept a duel; nevertheless I am prepared to defend myself against unjust aggressors."

748. The penalties established against duelists are the following: 1. Excommunication latae sententiae reserved to the Supreme Pontiff, which is extended to any accomplices whatsoever, as will be said n. 1330. - 2. Proscription of all goods, which penalty nevertheless is no longer in force, and perpetual infamy and therefore irregularity. - 3. Privation of ecclesiastical burial, if the duelists die in the conflict itself, although before death they had given signs of penitence (cf. n. 1387, 2; cf. also Vind. Alph., P. III, q. 12).

Note. Spanish law decrees penalties against duelists, art. 439-447; likewise the Austrian Criminal Code.

A duel in general is the fight of two or of a few among themselves; more strictly, the fight of two or several equal in number, from a preceding agreement concerning place, time, and weapons, with danger of killing, mutilation, or wound.

A duel is 1° public or private, according as it is done by public authority or not; 2° solemn or simple, according as it is done before witnesses, or with these omitted.

477. Principles. - I. A duel undertaken by public authority is licit if it is done for the common good, for example, that war may be brought to an end; otherwise, if it is commanded or permitted for other causes. The reason of each is evident.

II. A duel undertaken by private authority can never be licit. The reason is that it is repugnant 1° to natural right, since God has given to none of men direct dominion over his own life or another's, nor over members outside the case of defense against an actual aggressor; 2° to Canon Law, as is clear from Trent,¹ where the duel is called: "A detestable usage, introduced by the contrivance of the devil."²

478. You will resolve. - 1° It is not licit to accept a duel even for averting ignominy; because it is repugnant to reason to use that cruel means with evident danger to one's own life or that of a neighbor, indeed also of eternal salvation, on account of an end not necessary or even useless. True estimation, praise, and honor are not placed in the vain opinion of this world, whose wisdom is foolishness with God.³

2° It is not licit for a military man to accept a duel, even if for this reason he must yield an office necessary for the sustenance of himself and his own. The reason follows from what has been said: for the killing of another by private authority is never licit, except against an actual aggressor with moderation of blameless defense; but one provoking to a duel is not an actual aggressor.

3° It is not licit to undertake a duel on this law, that, when one has been wounded or when a certain number of blows has been completed, the fight cease; 1° because even in this there is the greatest danger of a lethal wound; 2° because Clement VIII, Constitution Illius vices, 1592, § 5, also forbade this; 3° because this kind of duel creates scandal and furnishes occasion for fatal duels.

4° It is not licit to undertake a duel, even with public authority acceding, for knowing the truth, for proving innocence, or for ending a private lawsuit; because it is not a means ordered to these ends.⁴

5° But it is licit to fight in a duel for mere defense, even accepting weapons from the adversary, if death is intended by him, or the loss of goods is going to follow unless the fight is accepted, and there is not another way of escaping this danger; but not to go from agreement to another place, even if death is intended for you in the case in which you would not immediately go to another place; - nor to appoint another determined time for defense; because then there would be a duel properly so called. Cf. Vind. Ed. 2. T. I. p. 317.

6° Those do not enter into a duel properly so called, and consequently do not incur the penalties inflicted on duelists, who, becoming inflamed with sudden anger on account of injury, provoke each other to a fight and immediately engage; because it is more truly a brawl, but not a duel, which ought to be done from agreement of place and time. And for the same reason, on account of an unforeseen meeting of this sort, the aforesaid penalties are not incurred, although the fighters from the same impulse of the brawl immediately betake themselves together to some suitable place.¹ - S. C. C., Oct. 5, 1744. - Scav.

See the five propositions concerning the duel condemned by Benedict XIV in the year 1752, in the Bull Detestabilem, p. XXVI.

365. A duel, among moralists, is a singular combat (monomachy) entered into between two or more persons, from a pact or agreement, with arms suited to killing or gravely wounding. Whence three things are required for it:

a) a singular combat, which generally is entered into between two, sometimes between several equal in number, with whatever intention it is done, whether for the sake of exercise, or of vengeance, or of repairing honor, or of showing fortitude, or of proving a right;

b) entered into from a pact, in which, namely, the adversaries agree concerning the time, place, and arms: but if two, under a movement of anger, immediately come together, or one attacks another and the latter defends himself, it is not a duel properly so called;

c) arms suited to killing or gravely wounding, so that it is by no means necessary that in fact death or a grave wound follow, but it suffices that of itself a grave wound can be inflicted, which, namely, would be matter of grave sin. Thus a fight which is done with the fist, a rod, a staff, or a sword with blunted edge, so that of itself neither is gravely wounded, is not a duel, although it can be a mortal sin.

One duel is public, which is entered into from public authority on account of the public good; another is private, which is undertaken in a private name.

A public duel can be licit if it is done for the common good, to weaken enemies, or to end a controversy or war between two peoples, with less damage, lest the blood of many be poured out; - not always, however, but provided that it favors the common good or at least does not harm it:¹ for if a whole army, for defending the common good, can fight against another army, even the leaders can agree that one or a few should fight against one or a few. Yet on account of a particular good, from the authority of a judge, such a duel would not be licit for vindicating an injury or manifesting the truth, because it is not a means necessary for these ends, since other means are present, nor is it done, as in the prior case, for impeding greater violence.

¹ Three cases are indicated in Billuart, On Charity, diss. 7, a. 5: The first case is if he who wages a just war feels himself inferior in forces to the enemy, and that one must either fight and succumb or duel; he can both accept and offer a duel, because he defends the common good in the better way in which he can, and chooses the lesser danger. The same, for the same reason, seems to have to be said if he is doubtful concerning victory, and there is no hope of restoring the army in the case in which it is routed. The second case: if the leaders, considering the inconveniences of war, the detriments of goods, the deaths of many, etc., judge it more useful for the republic to settle the controversy by duel than by war; for then the duel is judged licit by many on the part of him who wages a just war, provided, however, that the victory is not made more doubtful than in war. The third case is if, from the fact that the duel offered by the enemy is not accepted, the enemy becomes bolder and more powerful, the other cast down and more timid; then also it is the opinion of many that it can be accepted. And in a similar case David seems to have fought against Goliath.

But a private duel is always a grave sin, as the doctrine of the Catholic Church holds.²

² On dueling M. Gierens, Ehre-Duell und Mensur, can usefully be read.

Among the ancients there were no duels except public and solemn ones between the leaders of armies or certain soldiers, for putting an end to war. At Rome indeed there existed bloody fights of gladiators between captives and slaves; but they were not duels properly so called, since those men were compelled to the fight, and did not freely agree upon it.

In the Middle Ages, there were private singular combats, among the Gauls and Germans, for vindicating to oneself a determinate right or good; from this usage judicial duels or ordeals seem to have arisen, for the sake of ending a controversy, which, borrowed from the Germans and Lombards, existed widely diffused: when full proof was lacking, under the authority of a judge, a duel between litigants was in use for proof of the truth, which thus was left to the judgment of God, whom they supposed to intervene in favor of justice. But tournaments held among knights differed from duels, not indeed with a hostile mind, but for the sake of exercise and of showing fortitude; although nevertheless at times they degenerated into duels or were entered into with danger of life.

From these tournaments and from the suppression of ordeals, in the sixteenth century there arose, first in France and Italy, duels, according to the manner of speaking today, more strictly so called, held, namely, for the sake of vindicating honor. When reputation or honor had been injured, nobles and military leaders thought that this could be vindicated only by arms and washed with blood: for they judged that they did not carry swords in vain. This custom first prevailed among nobles and soldiers, then also among men of the gown and political men.

366. Principle. A private duel is of itself and intrinsically and always gravely evil and unjust. - It is proved:

A. From the doctrine and legislation of the Church, reprobating the duel as a grave crime and punishing it with grave penalties. After various decrees of Pontiffs, bishops, and particular councils, sanctions against the duel were enacted in the Council of Trent, sess. 25, c. 19, on reformation, and then, explained by Benedict XIV and renewed by Pius IX, are found confirmed in the new Code of Law.

Can. 2351: "§ 1. Those who perpetrate a duel, - or simply provoke another to it, - or accept it, or furnish any assistance or favor, - and also those deliberately watching it - and those permitting it, or, so far as is in them, not prohibiting it, of whatever dignity they may be, are subject ipso facto to an excommunication simply reserved to the Apostolic See.

"§ 2. But the duelers themselves and those who are called their seconds are besides ipso facto infamous." Hence they are irregular from defect according to canon 984, 5°, and if death has followed or grave mutilation, the duelers are also irregular from delict (can. 985, 4° and 5°).

Can. 1240: "They are deprived of ecclesiastical burial, unless before death they have given some signs of penitence... those dead in a duel or from a wound received from it."

B. By reason: A duel is intrinsically and gravely evil, because the dueler rashly and without sufficient reason exposes himself both to danger of his own death or injury, and to danger of killing or injuring another. Hence a duel includes:

1. the injustice of suicide toward God, the author and lord of life;

2. the injustice of homicide, also toward another;

3. an illegal injustice toward society, since it is born gravely to harm not only the very family of the dueler but also the public peace, and it is repugnant to social order: for it is not licit by private force and hand to vindicate one's own right, apart from the case of legitimate defense against an actual and unjust aggression, in the case of urgent necessity, as was explained above.

In the case of a duel it is manifest that the necessity of legitimate defense is not present, for

a) the aggression, if there was any, is not actually existing but already past;

b) recourse can be had to judges or other prudent men who are able to compose the matter;

c) recourse to arms is incapable of vindicating honor or reputation: "For although," says Leo XIII,³ "he who, after receiving an injury, has appointed the combat departs victor from the contest, this will be the judgment of all sensible men: by such an outcome of the contest he is proved indeed better in strength for wrestling, or in handling arms, than the challenger, but not therefore superior in honor; but if the same man himself has fallen, to whom in turn would this manner of protecting honor not seem ill-considered, not plainly absurd?"

³ In the apostolic letter Pastoralis officii, 12 Sept. 1891, to the bishops of Germany and Austria-Hungary.

d) similarly, a duel is not a means apt for proving innocence, or proving a right or the truth of an assertion; moreover, to suppose God's special intervention in favor of truth or justice in a duel is impious, and to demand or require this is nothing other than to tempt God Himself.

367. Corollaries. - 1. Hence those are not excused who accept a duel in order to avoid very grave evils, or lest they be held sluggish or cowardly.⁴ Even for the best end, it is illicit to employ evil means. Therefore Leo XIII says: "If the duties of men were to be measured from the false opinions of the crowd, not from the eternal norm of the right and the just, there would be no natural and true distinction between honorable actions and shameful deeds. The pagan sages themselves both knew and handed down that the fallacious judgments of the crowd must be spurned by a strong and constant man." Moreover, one can propose something else, namely, an office of charity to be undertaken with danger of death.

⁴ "A knight challenged to a duel can accept it, lest he incur among others the mark of timidity": proposition 2 condemned by Alexander VII.

2. Even to soldiers duels are not licit, so that by such exercise military virtue may be sharpened and an end imposed on the innumerable quarrels which arise among them. For, says Leo XIII, "the incitements of military virtue look to this, that the state may be more prepared against enemies. But will this be able to be effected by the aid of that custom which by its own nature looks to this, that, when a disagreement has arisen among soldiers, the causes of which are hardly rare, one or the other from the individual parts of the defenders of the fatherland is killed?" Besides, there are other means for composing disagreements, such as, for example, the judgment of arbitrators.

3. Less dangerous duels, in which the adversaries stop from fighting after a certain number of blows has been completed, or at the first light wound inflicted, or, as they say, at the shedding of the first drop of blood, are also true duels, since they are done with arms of themselves suited to gravely wounding and do not exclude grave danger, whence even in such duels a more unhappy outcome sometimes occurs. But how ridiculous it is to bargain for such a condition appears to one thinking even lightly, since no special force can be in the first little drops of blood so that it may vindicate the honor of the offended man. It is added that Clement VIII also prohibited non-fatal duels, and that this kind is born to create scandal and to furnish occasion for fatal duels.

4. Academic duels, as they are called, in which students, with certain parts of the body well covered, try to inflict a wound upon one another in the face with a lighter sword, in ecclesiastical law are to be equated with true duels, even if of themselves they do not bring danger of graver wounding, as is established from the declaration of the S.C.C., 9 Aug. 1890, which retains its force with the new code promulgated, as was said 10 Feb. 1923, and again was confirmed and illustrated 13 June 1925.

For they are a favor furnished to the duel and a preparation for it, as also a confirmation and propagation of the prejudices upon which the duel rests; whence they constitute grave scandal. Besides, they too are done of themselves with arms suited to gravely wounding.

368. Remark. - After the recent war the practice of dueling happily began to decrease. In some regions, however, perhaps it could still happen that a duel is sometimes imposed on soldiers by leaders. Although generally the doctrine of the Church concerning the duel is not unknown, nevertheless there can be soldiers who in the said circumstances, unwillingly and in good faith, undertake a duel, whether they are ignorant of the penalties annexed, or falsely persuade themselves that they cannot avoid such a fight. The confessor will have to attend to this good faith, so that in warning the penitent he may be prudent, lest altogether uselessly he disturb his conscience. Nevertheless, generally it is better that men know that every duel is condemned by the Church, and that scandal must be guarded against which would result from a duel accepted by a Catholic soldier.

Dueling, properly so called, is a dangerous fight of two persons according to a previous agreement concerning place, time, and weapons.

I say. Dueling undertaken by private authority can never be licit; because not only is it repugnant to natural right, since God has given to none of men dominion over his own life or that of another, nor over members, outside the case of defense against an actual aggressor; but also to canon law, as is clear from Trent, sess. 25, cap. 19, where dueling is called: "A detestable usage, introduced by the devising of the devil." - I said private, because if it is undertaken by public authority for the common good, e.g., so that war may be settled, it will certainly be licit no otherwise than war. - Cf. St. Alphonsus, nn. 399 and 400.

You Will Resolve. - 1st. Certainly, practically speaking, there can be dispute concerning the conditions of a duel, all of which are required for the whole malice of the act and the incurring of penalties; but never concerning a cause which could legitimate the provocation or acceptance of it, since it is something intrinsically evil. Wherefore, once the existence of a duel has been proved in some particular case, no reason, however grave, will ever excuse.

2nd. It is not licit to undertake a duel by this rule, that when one person has been wounded, or a certain number of blows has been completed, the fight should cease; both because Clement VIII prohibited even non-fatal duels, and because those acting thus implicitly admit any outcome whatsoever of the fight and consequently contract the whole malice of dueling.

3rd. But it is licit to fight for mere defense, even by accepting weapons from the adversary, if death is threatened by him unless the fight is accepted, and there is not another way of escaping this danger; but it is not licit to betake oneself to another place, or to appoint another determined time for defense; because then a duel properly so called would be had.

4th. Those who, on account of an injury, suddenly growing hot with anger, and provoking one another to a fight, immediately come together, do not enter into a duel properly so called; because it is more truly a brawl than a duel, which must be done from an agreement concerning place and time. - Sacred Congregation, Oct. 5, 1744. - Cf. St. Alphonsus, n. 401.

It is useful here to report the five propositions concerning dueling condemned by Benedict XIV in the year 1752, in the Const. Detestabilem. They are the following:

1st. "A military man who, unless he offers or accepts a duel, would be held as fearful, timid, abject, and unfit for military duties, and thence would be deprived of the office by which he sustains himself and his own, or would have to be perpetually without hope of promotion otherwise due and merited by him, would be free from guilt and penalty, whether he offers or accepts the duel."

2nd. "Those accepting a duel, or provoking to it, can be excused, even for the sake of protecting honor or avoiding human contempt, when they know certainly that the fight will not follow, since it is to be impeded by others."

3rd. "A leader or officer of the military accepting a duel from grave fear of loss of reputation or office does not incur the ecclesiastical penalties laid against duelists."

4th. "It is licit in the state of nature of man to accept and offer a duel for preserving fortunes with honor, when the loss of them cannot be repelled by another remedy."

5th. "The asserted license for the natural state can also be applied to the state of a badly ordered commonwealth, in which, namely, either by negligence or by the malice of the magistrate, justice is openly denied."

You will ask 1° what a duel is.

I answer. A duel, in Greek monomachia, is the fight of one against one, and thus taken broadly it is the brawl of two between themselves; but as it is taken in law and with respect to ecclesiastical censures, it is commonly defined :²²³ «A dangerous fight of two entered into by agreement or compact, with designation of time and place.» And because the matter of censures is odious, and therefore to be restricted, all parts of this definition are to be taken strictly. Therefore ²²³ S. Lig., lib. IV, n. 406.

It is called 1° «the fight of two;» because, if several promiscuously fight against several, there will be simply a brawl, not a duel, unless single ones determined against single ones determined fight, as is done in a solemn duel. For a twofold duel is distinguished : one solemn or public, when certain ceremonies are employed, as the choice of godfathers or, as they call them, seconds, the assumption of witnesses, letters of challenge, or libels of citation commonly called cartel, etc.; another simple, when these ceremonies are not employed.

It is called 2nd «a dangerous fight;» because fights which are made without peril of killing or grave wounding, such as with fists, a light staff, pulling of hair, etc., although sometimes they are grave sins, are nevertheless not properly duels.

It is called 3rd «by agreement or compact.» So express it Gregory XIII, constitutio Ad tollendam, given in the year 1582, and Clement VIII, in the constitutio Illius vices, given in the year 1592; that is, from an agreement previously made of fighting at a determinate place and time. Whence those who meeting unexpectedly fight, or if one has sought out another, or threatened him, there is no duel, for lack of compact. Similarly, if of two quarreling, one or both run home and return with arms and fight; likewise, if in a rush of anger they say : «Let us fight here,» and they fight, there is not properly a duel, for lack of compact.

It is called 4th «with designation of time and place.» Thus require Gregory XIII and Clement VIII, in the cited constitutions; so that, if the designation either of a determinate place or of a determinate time be wanting, there is no duel properly subject to censures.

You will ask 2° whether the duel is licit.

I answer. 1°. The duel by private authority is not licit : 1° because every private vengeance is illicit; 2° because by the precept Thou shalt not kill not only is killing forbidden, but also proximate peril of killing, as in other precepts; 3° because both the Church and Christian princes prohibit the duel under gravest penalties. Trent, sess. XXV, On Reform., cap. 19; Gregory XIII and Clement VIII, in the cited constitutions.

[Specially Alexander VII condemned this proposition, n. 2 : «A horseman challenged to a duel can accept it, lest he incur the mark of timidity among others.» Since afterwards several authors asserted that the duel is licit in some circumstances, Benedict XIV, constitutio Detestabilem, given November 10, 1752, condemned the following five propositions as false, scandalous and pernicious :

1° «A military man who, unless he offer or accept a duel, would be held as fearful, timid, abject and unfit for military duties, and thence would be deprived of the office whereby he sustains himself and his own, or ought perpetually to lack hope of promotion otherwise due and merited by him, would be without fault and punishment, whether he offer or accept a duel.»

2° «They can also be excused, for the sake of guarding honor or avoiding contempt among men, who accept duels or challenge to them, when they certainly know that the fight will not follow, namely because it will be impeded by others.»

3° «A duke or military official accepting a duel out of grave fear of loss of fame and office does not incur the ecclesiastical penalties laid down by the Church against duellists.»

4° «In the natural state of man it is licit to accept and offer a duel, for preserving fortunes with honor, when the loss of them can by no other remedy be warded off.»

5° «The asserted license for the natural state can also be applied to the state of a badly ordered city, in which plainly justice is denied either through negligence or malice of magistrates.»

It must be added that it is no more licit to take up a duel on this law, that, one being wounded, the fight must cease : because besides the prohibition and scandal, there is present danger of lethal wound. Even if it were certain that the wound would not prove lethal, nevertheless the combat would be illicit : both because any voluntary wound and even blows are included under the precept Thou shalt not kill; and because Clement VIII, constitutio Illius vices, of the year 1592, forbade «duels even non-lethal.»]

I answer. 2°. The duel by public authority is rarely licit. Proof 1° In the first place it is not licit for sake of spectacle or ostentation of strength; because the prince has no right over the life of subjects except malefactors.

2° It is certain that the duel is illicit for detecting crime or innocence, as was once frequent; because in a duel the innocent as equally as the guilty can fall. Whence the manifestation of truth would be awaited either from the devil, and it would be superstition; or from God, and it would be temptation of God.

3° It is not licit to have a duel for ending litigation or controversy between private persons : because either the duel is instituted that through its outcome it may be discerned on which side justice stands, and thus returns the preceding argument; or it is instituted only for this, that, a duel having been made, the parties cease from litigation, and then it is insane and diabolical to wish to incur peril of life, that they desist from a litigation from which they can desist by their own will and with safe life, or which can be terminated by authority of the supreme prince, or by a lot free of danger.

4° Speaking per se, it is not licit to have a duel for ending a controversy, or for avoiding or terminating war between supreme princes; because the duel neither from God nor from nature is a means ordained and proportioned to warding off injury, or to obtaining satisfaction for injury inflicted, which are the two causes of wars and controversies between supreme princes. Ergo. — Proof of the antecedent. He whose state has the right can equally be conquered as the other. For either the faculty of fighting of each is equal, or if one be more practiced, very many things are wont to happen in this singular combat, on account of which often the stronger and more practiced succumbs; and therefore the justice and common good of the state, whether in warding off injury, or in obtaining satisfaction, which ought to be defended by the common forces of the whole community, is exposed to the hazard of the duel. Ergo.

Nor do you say that the common good is likewise exposed to the hazard of war. For a supreme prince cannot enter into war, whether defensive or offensive, except a greater hope of conquering shine forth, whether by force, by stratagems, by help of confederates; or, should he be conquered, of restoring and increasing his forces. For the enemy holds himself toward his enemy as agent toward patient; but the agent acts not unless he be stronger than the patient.

Therefore when it is opposed, that it is better to end a war by the death of one than of many, it is answered that this is true when the killing of one is a means ordained and proportioned to usefully ending the war for the state; which we deny of the duel, except per accidens, in the cases to be reported below. And therefore I said, «speaking per se, it is not licit».

I said also in the answer that the duel is «rarely» licit by public authority; because several cases are assigned by many in which it seems licit by public authority.

The first is, if he who justly wages war feel himself inferior in forces to the enemy, and that he must either fight and succumb, or fight a duel, he can both accept and offer a duel; because he defends the common good in the better way he can and chooses the lesser danger. The same, for the same reason, seems to be said, if he be doubtful about victory, nor is there hope of restoring the army if it be routed.

Second case. If leaders, weighing the inconveniences of war, the detriments of goods, the deaths of many, etc., judge it more useful to the state to settle the controversy by duel than by war; for then the duel is judged by many licit on the part of him who wages just war, provided however that thence victory become not more doubtful than in war.

Third case is, if from this, that a duel offered by the enemy be not accepted, the enemy become bolder and stronger, the other cast down and more timid. Then also that it can be accepted is the opinion of many. And David seems in a like case to have fought against Goliath; or it must be said that he fought thus by divine instinct.

You will ask 3° what are the punishments of duellists.

[The following were laid down by the council of Trent, sess. XXV, On Reform., cap. 19: «Emperors, kings, dukes, princes, marquesses, counts and temporal lords by whatever other name, who shall have conceded a place for monomachy in their lands among Christians, let them be by that very fact excommunicate and understand themselves deprived of jurisdiction and dominion over the city, castle or place in which or near which they permitted the duel to be made, which they hold from the Church, and if they be fiefs, let them be acquired straightway by their direct lords. Those truly who committed the fight, and those called their godfathers, let them incur penalty of excommunication, proscription of all their goods, perpetual infamy : and let them be bound to be punished as homicides according to the sacred canons, and if they die in the conflict itself, let them lack forever ecclesiastical burial. Those also who give counsel in the cause of a duel both in law and in fact, or by whatever other reason persuade anyone thereto, as well as spectators, let them be held in the bond of excommunication and perpetual malediction : notwithstanding any privilege or evil custom whatsoever, even immemorial.»

The punishments of proscription of all goods and perpetual infamy, which can now nowise be applied, have grown obsolete. The penalty of excommunication latae sententiae is numbered among the censures simply reserved to the Roman Pontiff in the constitutio Apostolicae Sedis, Oct. 12, 1869. There is mentioned «those perpetrating duels, or simply challenging to it, or accepting it; and any accomplices whatever or offering any aid or favor, as well as spectators of deliberate purpose, permitting it, or not prohibiting it as far as lies in them, of whatsoever dignity they be, even royal or imperial.» Thus were confirmed, besides the decree of Trent, the constitutions of Gregory XIII, Ad tollendam; Clement VIII, Illius vices; Benedict XIV, Detestabilem.

This text, sufficiently perspicuous, will be explained below, on Censures. It need only be noted here that the excommunication extends wider than in the Tridentine decree, namely to challengers with mind of fighting, and to accepters, although from any cause whatever the duel does not follow. This fully accords with the aforesaid bull of Clement VIII.

Privation of ecclesiastical burial, which is a penalty distinct from excommunication, was decreed by Trent against those alone who «died in the conflict itself.» That the abuse of duels might be more efficaciously extirpated, Benedict XIV, in the constitutio Detestabilem, Nov. 10, 1752, decreed that severer measures be taken : «We decree and declare, he says, privation of sacred burial inflicted by the most holy Tridentine synod upon those dying in the place of the duel and combat to be incurred forever, even before sentence of the judge, upon him dying also outside the place of combat from wound accepted therein, whether the duel be publicly or privately declared, and even if the wounded man before death gave not uncertain signs of penance and obtained absolution from sins and censures : taken away the faculty of interpreting and dispensing concerning this penalty from bishops and Ordinaries of places; whereby to others there be offered a document of fleeing the crime and rendering due obedience to the laws of the Church.

Perhaps someone will object that this penalty is prescribed less strictly in the Roman Ritual increased and corrected at the command of the same Benedict XIV, where is read, tit. On Funerals : «Ecclesiastical burial is denied... to those dying in a duel, even if before death they gave signs of penance;» whereby the penalty seems restricted to duellists dying «in the conflict itself,» as had been enacted by Trent.

I answer that the constitution Detestabilem was published after the Brief Quam ardenti, whereby Benedict XIV, March 25, 1752, approved the new edition of the Ritual.]

You will ask 4° if one or both provoke themselves to a duel for preserving honor, not with mind of fighting, certainly knowing it will be impeded by friends, or otherwise not come about, or even with mind of fighting and inflicting some blows, but morally certain that no damage will follow thence, rather peace to be reconciled — do they incur excommunication.

I answer. probably negatively, because they provoke not truly, but apparently only, to a duel; for a duel is a dangerous fight. Yet in the external forum, where nothing is judged of internal things, it will be reckoned a duel, and therefore cannot be excused from fault.

You will ask 5° who can absolve from a duel.

I answer. That Clement VIII, by the cited bull, reserved this case to the Pope alone, derogating from the faculties and indults granted to any persons whatsoever of whatsoever order, state, rank or condition.

[In the constitutio Apostolicae Sedis, as was said above, this censure is inscribed among the cases simply reserved to the Roman Pontiff, and therefore cap. Liceat of the council of Trent can be applied to it, of which below.]

Nevertheless weighty authors judge that, when the case is occult, bishops can absolve from it, on account of the privilege granted to them by the council of Trent, sess. XXIV, cap. 6, Liceat, which was not derogated from by this constitution of Clement VIII, since no mention of it is made, as ought to have been done, that it be judged derogated. So Lezana, after Bonacina and Sanchez. And I judge this to be the common practice.

ARTICLE IV

On scandal.

Rixa is derived from Ringor, because it signifies a private fight, such as the fight of dogs, which quarrel (ringunt): Hence it is gathered to have originated from anger.

Riot is therefore, on the part of the aggressor, a mortal sin, as is had in Galat. 5.; but on the part of the one attacked, it can be mortal, if in gravely resisting he goes too far.

It is described by D. Bonaventure in his explanation of Theological terms: Rixa est audax voluntas vindicandi, in iniuriam facti procedens.

Many examples of riots are related by S. Doctor in the Bibliis pauperum, cap. 50. Genes. 26. The shepherds of Gerara quarrelled with Isaac.

Exodus 2. two Hebrews quarrelled, upon whom Moses came, reproving them.

Two women were contending before Solomon 3. Kings, 3.

The Jews contended about Christ John 7.

The Jews were disputing Acts 11. unwilling that the Gentiles be preached to.

The multitude of Iconium was divided, some of whom stood for the Jews, others for the Apostles Acts 14. and another cap. 15. another cap. 19. another cap. 21. another cap. 23.

Here the duel is usually treated of, which is a riot of two by agreement.

On which Caietan writes excellently 2. 2. quaest. 95. art. 8. Sanchez lib. 2. cap. 39. Filliucius tract. 29. cap. 8. Suarez de cens. disp. 23. Bonacina tract. 3. disp. 11. Fagundez in the place to be cited, with Tanner.

It must be asserted, however, that the duel is illicit by the natural law, unless it be necessary to escape death.

It is condemned moreover in the sacred Laws, as appears in cap. Monomachiam, 2. quaest. 5. and cap. Henricus, extra de clericis in duello, and the Council of Trent sess. 25. in the Decree on general reformation, cap. 19. and it is had from D. Augustine in 23. quaest. 1. They are condemned by the Leg. unic. Cod. de gladiatoribus, Lib. 11.

And in our own time Louis XIII, justly acclaimed as the Just, King of France, sanctioned a most severe Law, by which he stamps the duel with the mark of infamy, condemns duelists to death and other penalties, so that he might avert so great an internecine slaughter of the most valiant Dukes and soldiers in his kingdoms.

Most recently also, an offspring worthy of such a father, Louis XIV, with an immense zeal for Justice, adding to his unbent and intrepid spirit the grandeur whereby he is truly proclaimed Great, decreed this same thing by a royal Diploma, and established moreover, beyond the irremissible penalty of the head, the proscription of honors, to be stripped forever of the islands of nobility, those who among nobles have contended in that accursed fight; Nor indeed could a more efficacious remedy be applied to tempering the ebullition of the blood of gallant French brawlers, as the outcome daily proves, than that those who thus pursue glory be buried inglorious, both with the living and with the nobility of posterity. Wherefore that illustrious nation, unable to pour out blood in duelling, sheds it more gloriously in subduing the enemies of the Church far and near.

Nor do duelists truly defend Honor; nay, they hunt ignominy for themselves; they do not rightly repay injuries, since this is not licit privately.

That David in 1. Kings 18. engaged in combat, was for the defense of Divine honor, with the public authority of the King from a divine instinct, as the Gloss also has in cap. Cura suscepi, de pugnatione ordinaria.

They sin gravely, and even those cooperating in a duel are excommunicated. See the Council of Trent; nor are they excused by any custom, as D. Bonaventure notes in speculo animae, cap. 1. for in common all Doctors, Theologians and Jurists have cried out against it, as S. Doctor observes. Wherefore also the Council of Trent excommunicates ipso facto sess. 25. cap. 19. the Lords permitting it, or granting the place, the godfathers, the procurators from counsel, the spectators; and the Bull of Clement VIII. excommunicates those cooperating, even if the duel does not follow; if it did not stand through them, Gregory XIII. excommunicates, yet does not reserve. And so, besides infamy and the loss of Ecclesiastical burial, if they die in the duel, the duelists also incur excommunication reserved to the Pope; if it be done with solemnity, with godfathers and provocative challenges (chartulae), by the proper bull of Pius IV. Add, if the duel be merely private, according to the Bull of Gregory XIII. and Clem. VII. who extend the excommunication of the Council of Trent even to a private duel, as Suarez teaches with Navarre Tom. 5. disp. 23. sect. 3. Tanner disp. 2. quaest. 6. dub. 7. Fagundez in 5. praecept. lib. 5. cap. 8. num. 5 and it is of the latae sententiae.

The same penalties others cooperating incur. Now therefore the excommunication, even if not reserved by Gregory, is certainly reserved by Pius and Clement; Yet they can be absolved by Religious in Rome, and outside Italy. See Fagundez num. 5. on this more has been said in prima secundae, tract. de actib. human. disput. 17. quaest. 10. ad propos. 2. according to the Decree of Alexander VII.

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.

1. A duel may be defined: A meeting of two parties by private agreement to fight with weapons in themselves deadly. The meeting must be by agreement: a chance meeting of Montagues and Capulets, where the parties improvise a fight on the spot is not a duel. The agreement must be private; anything arranged by public authority, as the encounter of David with Goliath, that in the legend of the Horatii and Curiatii, or the wager of battle in the Middle Ages is not a duel. It is enough that the weapons be in themselves deadly, as swords or pistols, though there be an express stipulation not to kill: but a pre-arranged encounter with fists, with foils with buttons on, or even perhaps with crab-sticks, is not a duel.

2. The hard case in duelling is the case of him who receives the challenge. Let us make the case as hard as possible. In a certain army, every challenge sent to an officer is reported to a Court of Honour. If the Court decide that it ought to be accepted, accept the officer must, or lose his commission and all hope of military distinction. In this army, say, there is an officer of high promise who is believed to object to duels on conscientious grounds. An enemy pretends to have been insulted, and challenges him, on purpose to see him refuse and have to go down into the ranks, his career spoilt. The Court of Honour rules that the duel must come off. Of this very case, Reiffenstuel, a canonist of repute, about the year 1700, writes:

"The answer is, … that they who in such cases are so necessitated and constrained to offer, or accept, a duel, as that unless they offered, or accepted it, they would be held cowardly, craven, mean, and unfit to bear office in the army, and consequently would be deprived of the office that they actually enjoy, and support themselves and their family by, or would for ever forfeit all hope of promotion, otherwise their due and desert,—these I say in such a case are free from all fault and penalty, whether they offer or accept a duel." (In lib. v. decret., tit. 14, nn. 30, 31.)

The author protests in his Preface that he wishes his opinions "all and each to be subject to the judgment, censure, and correction of the Holy Catholic Church." The opinion above quoted was condemned, word for word as it was uttered, by Pope Benedict XIV. in 1752.

Now for Reiffenstuel's reason. "The reason," he says, "is, because in such a case as is supposed the acceptance and offering of a duel is an absolutely necessary, and thereby a just and lawful, defence of your reputation, or goods of fortune, and, by equivalence, even of your life, against an unjust aggressor, who we suppose does you an injury, and thereby gives you no choice but to call him out, or calls you out, and accordingly assails you in words, &c. Hence, as for the needful defence of reputation, or of goods of fortune of great consequence, it is lawful, with the moderation of a blameless defence, to kill an unjust aggressor, so it will be also lawful to offer and accept a duel, and therein slay the other party." Reiffenstuel here evidently supposes that killing done in self-defence is direct. Those who agree with him on that point, proceed to draw differences between self-defence and accepting a challenge. Of course the two are not the same. The true difficulty for them lies in making out how the reasons which justify self-defence in their view of it, do not also justify the acceptance of a duel: how, if I may make another man's death a means to the preservation of my vital right, I may not as well make another man's risk of death and my own, which is all that a duel amounts to, also a means, none other being at hand, to the preserving of my no less vital right. This grave objection does not touch us. We have denied that killing in self-defence is direct. On the lines of that denial we meet Reiffenstuel's argument simply as follows.

3. In self-defence, the aggressor is slain indirectly. In a duel, not indeed the death itself, or mutual slaughter of the combatants, is directly willed, but the risk of mutual slaughter is directly willed. But we may not directly will the risk of that which we may not directly do. And the combatants may not directly do themselves or one another to death. Therefore they may not directly risk each his own and his antagonist's life. But this risk is of the essence of a duel. Therefore duelling is essentially unlawful.

4. Such is the clenched fist, so to speak, of our argument. Now to open it out, and prove in detail the several members. In self-defence, neither the death of the aggressor nor the risk of his death is directly willed, whereas the risk of death is directly willed in a duel, which difference entirely bars the argument from self-defence to duelling. For a duel is a means of recovering and preserving honour, which is effected by a display of fortitude, which again consists in exposing yourself to the risk of being killed, and, as part of the bargain, of killing the other man. The risk to life is of the essence of a duel: it only attains its end—of establishing a man's character for courage—by being dangerous to life. Fortitude essentially consists in braving death. (Ethics, c. v., s. viii., n. 1, p. 94.) Deadly weapons, chosen because they are deadly and involve a risk of life in fighting with such arms, are the apt and express means for showing readiness to brave death. If the weapons were not deadly, there would be no point in the duel. As a matter of fact, where our definition of duel is verified, and weapons in themselves deadly are used, the encounter cannot be other than dangerous, especially between foes and where the blood is up. In the French army, where the regimental fencing-master stands by, sword in hand, ready to parry any too dangerous thrust, serious results still have occurred. If any man will have it that short smooth-bore pistols at forty paces in a fog are not to be counted dangerous weapons, all we can say is that MM. Gambetta and De Fourton, the one being nearly blind, and the other having lost an eye, did not fight a duel. In a duel then the danger of being killed and of killing is directly willed; it is the precise means chosen to the end in view.

5. We have proved already that it is not lawful directly to procure one's own death, nor the death of another innocent man. If any one contends that his antagonist is not innocent, not even in a political sense (c. ii., s. i., n. 2, p. 203), we must here assume against him, what we shall afterwards prove, that the guilty are not to be directly put to death except by public authority. But what we may not directly bring about, we may not directly risk the occurrence of. As I may not throw myself down a cliff, so neither may I walk along the edge precisely for the chance of a fall. I may often walk there with the chance of falling, but not because of the chance. It will be said that the English love of fox-hunting and Alpine climbing is largely owing to the element of danger present in those amusements. But it is not the danger pure and simple, that is chosen for amusement: it is the prospect of overcoming danger by skill. The same may be said of Blondin on the tight-rope: it was his skill, not his mere risk, that was admired. There are some risks that no skill can obviate, as those of Alpine avalanches. We may face a mountain slope where avalanches occur, but we must not hang about there because of the avalanches, making our amusement or bravado of the chance of being killed. That would be willing the risk of death directly, as it is willed in duelling.

Readings.—Paley, Mor. Phil., bk. iii., p. 2, c. ix.; St. Thos., 2a 2æ, q. 72, art. 3.

Caia came for confession to Paul, a missionary priest in England, to whom she disclosed that in the preceding year in Italy she had stood by at a duel in order to encourage a friend fighting a duel. Caia further said that she had not been able to obtain absolution from the parish priest in Italy, since he affirmed that the case was reserved to the Pope. In answer also to Paul’s question, Caia replied that she knew the Church forbids every participation in a duel under penalties, but that she had performed a work of charity which it would have been inhuman to refuse; indeed, that she would do the same thing again in the same circumstances. Paul, however, wishes to know what he can and ought to do in the case. Hence it is asked:

1. What is a censure, and what conditions are required in order that it be incurred?

2. How does a censure cease?

3. What is persistence in a censure, and what effects does it produce?

4. What is to be said of the case?

1. What is a censure and what conditions are required for incurring it?

The first part of the question was answered above, p. 349.

The conditions required that a censure may be incurred are: a sin grave internally and externally, completed, not altogether past, and committed with contumacy.¹

1 Manual of Moral Theology, vol. ii, 369.

The second question was answered above, p. 353.

3. What is insordescence in a censure and what effects does it produce?

Insordescence is the obstinate remaining of an excommunicated person in his excommunication for a whole year without absolution. The Council of Trent decreed (Sess. XXV, c. 3 de Ref.) that such a person might be proceeded against as suspect of heresy. If he does not purge his heresy he should be declared a heretic after the lapse of another year.²

4. The case. The third of the excommunications reserved to the Pope by the Constitution Apostolicae Sedis is couched in these terms:

“ Those who commit duels, or simply provoke them, or accept them, or assist any of them in any way or give them favor, and those who watch them with intent, or allow them, or to the extent that they are able do not prevent them, of whatever dignity they may be, even royal or imperial.

It is obvious, therefore, that Caia had incurred this censure by being a spectator of the duel with the intention of giving courage to her champion. She seems also to have had sufficient knowledge that she was doing something prohibited under censure by the Church. She is. not yet penitent, and Paul’s first task will be to try to make her see the gravity of her sin and express her sorrow and repentance for it. When she is disposed he will be able to absolve

< Lehmkuhl, vol. ii, n. 1148.

her by virtue of the special faculties which confessors in England receive through their bishop from the Holy See. She does not seem to have fallen into insordescence, for she tried to get absolution before, and the case does not state that she remained a whole year under excommunication.