Penalties of duelling

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.

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.

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.

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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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