72. The nineteenth Chapter. Of a seuerall Conflict or Combate betwee

The nineteenth Chapter. Of a seuerall Conflict or Combate betweene twaine hand to hand.

¹ NOwe let vs sée whether it bée lawefull to fight a Combat. They comonly call the same Duellum, that is, a Co bat betwéene twaine: Not because this word doth properlie signifie that thing. For Duellum properly signifieth euerie fight, because therein two partes doe contend. But I, to the intent y t this treatise may be the plainer, will call ⟨…⟩, that is, where one fighteth with one, Duellum, a Combate. ² Dauid (say they) fought a Combate hande to hande, therefore it is lawfull. And the fathers when they wrote vpon that place, made some note of that matter. Howbeit the Canonicall lawes vtterly condemne it. And the latter sort of Lawyers, when they treat thereof say, that the thing it selfe doubtlesse is nought, but yet for as much as it is suffered among Princes, therefore they say that they giue Counsell howe the same must be vsed. As if there should be a disputation of whoredome, all men would straightwaie graunt that the same is wicked and damnable: but because it is suffered in many common weales, they would admonish with what moderation it should be vsed. Manie saie that it is lawfull to fight a Combate, as if sentence of death be giuen against an innocent with this exception: to wit, vnlesse he will fight a Combate. The selfe same thing they thinke to bee lawfull, if that suites in lawe of ciuill and criminall thinges cannot otherwise be ended. They say that examples be extant of Christian Princes, who not onelie permitted this, but also they themselues after this manner contended. And they adde that this kinde of fight hath some shewe of a lot. And séeing lots are permitted, as wee haue largelie before declared, this also by the selfe same right may be permitted. Lastlie they saie, that this is no lesse lawfull than warre: But warre may lawfullie be made: therefore also a Combate. ³ Before I come to the matter it selfe, it behooueth to shewe that there is a great difference betwéene a Combat and warre. For in warre men incounter with great forces, yea sometime with all their strength: but in this cause the triall of the whole matter is permitted onely vnto two. And although More and Lesse (as they say,) doe not chaunge the kinde, yet be there here great differences. And further, we must consider, that there is a great difference betwéene a Combat and that defence, whereby they saie it is lawfull to repell violence by violence. Because he that is so inuaded by a Cutth⟨…⟩ote or théefe, although he be a priuate man, yet is he sufficientlie armed by the Common weale, onelie for defending of himselfe and not for killing. For he that is in that place cannot alwaies call for the Magistrates helpe. But here they méete together by appointment, and the one is fully minded to kill the other. ⁴ Moreouer these conflictes are taken in hand, either by priuate appointment, or else by permission of the Magistrate. Neuerthelesse that is altogether condemned. For it is written: Thou shalt not kill. But this if the Magistrate permit, there féemeth to bee in it a certaine kinde of iustice. Howbeit we ought to knowe, that we must not obey the Magistrate, if either he commaunde or permit those things that be vniust and repugnant to the worde of God. In déede we must obey the Magistrate, ⁵ but yet Vsque ad Aras, [that is, with a safe conscience towardes God.] And séeing such kinde of fight is an humane action, that must be obserued therein, which is obserued in other Actions: That is, vnto what ende the same is taken in hand. ⁶ And the end of euery actio~ hath a respect either of iustice, or iniustice: either of goodnesse, or naughtinesse. Wherefore let vs take reasons first from y e word of God, secondly from good lawes, & lastlie from the end. Now let vs enter into y e matter it selfe.

2 The finall causes why some thinke that Combat should be permitted, be diuers and manifold, set foorth héere and there among manie sorts of authors, both Lawiers and Canonistes, and Schoolemen. First they saie it is lawfull, because they say it is in stead of proofe of a hidden thing, that it may appeare some man hath right and is an innocent. For when there appeare neither witnesses nor euidence, the vttermost is to trie the matter by battell. And among the Lawyers this kinde of triall is called vulgare, as in the Decretals De Purgatione vulgari, and in the same place De Clericis Duello certantibus, and in the Decrees 2. Cause, quest. 5. in the Chapter Consuluistes, and in the Chapter Monomachia. It is also called vulgare, because it is onely of the common sort of men, and hath not any strength either by right or by lawes. Wherefore this kinde of proofe is deceitfull and vncertaine. It is not lawfull to abuse the creatures of God. But these men abuse them: séeing they laie holde of that for a Testimonie, which was not instituted to that vse. And that doth the end oftentimes declare: wheras the iuster part is often vanquished. For this séemeth to be the order of nature, that the more strong and skilfull, not the more innocent, should haue the victorie. And in the Decretals De Purgatione vulgari, in the Chapter Significantibus, there is a case described: namelie that there were two men, of whom one accused the other of theft, and that they fighting together a Combat for triall of y e cause, the iuster man was slaine: For the theft was found with the other. ⁷ But that which is euerie mans right maie be tried if thou wilt aske counsell of the holie Scriptures. Either it may bée prooued by witnesses, as when it is saide, ⁸ In the mouth of two or three witnesses shall euery word stand. Or by writings, ⁹ as in the 32. of Ieremie, when a néere kinsman would redéeme landes, there were bookes written and sealed. Or by publike confession: ¹⁰ therefore Iosua commaunded a wicked man openly to confesse his wickednesse, and to giue the glory vnto God. Or by an othe, ¹¹ and therefore in Exodus, if one had lent his garment to an other, and that the same afterward had bin stolen, it behooued him to whom it was lent, to confirme by an oth that he tooke it not awaie. And in the 6. ¹² Chapter to the Hebrues, that an oth is the ende of euerie controuersie. But that sutes in law should be finished by Combat, ¹³ it is no where read in the holie Scriptures. Wherefore they which fight after that maner, doe it not of faith: And whatsoeuer is not of faith, is sinne. Neither is it to be doubted but that it is the will of them both that one would kill the other. But yet of necessitie the one of the two must be innocent. So that they that defende these things will that an innocent man shall bée slaine. ¹⁴ Besides, what else is this but to tempt God? For if the matter may be founde out by no tokens, and that God hath reserued the same wholie vnto himselfe, it must néedes be an intollerable importunitie, to goe about to séeke out the same. But if all iust meanes being attempted, the Magistrate can vnderstand nothing of the fact, he must absolue the man accused, and not commit him to a hazarded conflict. Moreouer the Magistrate which suffereth these things to be doone séemeth to séeke a miracle which in olde time was doone in glowing hotte yron and scaulding hot water. For in the Decretals De Probatione vulgari, the last Chapter, it is written that the manner in Liuonia was, that if a crime might not be prooued by iust Argumentes, ¹⁵ and that the person accused cried out that he was innocent, he for triall of himselfe, should treade with his féete vpon hotte Iron, or else dip his hands in hot scaulding water. Yea & to this verie vse, or rather abuse were they woont sometime to apply the Eucharist with this forme of wordes: The body of our Lord Iesus Christ be vnto thee for a triall. It séemeth that the same was a certaine ill imitation of the water of zealousie which is described in the 5. Chapter of Numbers. ¹⁶ But of this prophanation and abuse of the Eucharist, they had not one worde of God in that place. Neither were the Sacraments instituted vnto that ende that they should decide controuersies at lawe: they be testimonies of the heauenlie doctrine and of the Gospell, and they be signements and seales of the promises of GOD. Wherefore they should not so rashly haue bin laide open to the finishing of Ciuill controuersies. Further, let there be as much héede taken as there can, that the weapons on both sides may bee alike, and that no man helpe anie partie, yet can it not be prouided, but that the one shall be weaker than the other. And it is iniurie that the weaker shoulde bee coupled with him that is the stronger: Whereupon some of the fathers called this an inuention of the diuell.

3 An other cause why men will fight after this manner is for the ostentation of strength and force. ¹⁷ For there be certaine Thrasoes, which if they sée themselues at anie time contemned, doe straightwayes challenge the Combate: But that madnesse must in no wise be suffered. Yea and Panormitanus de Torneamentis, ¹⁸ in the Chapter Foelicis, saith that all games, wherein, either the life of man, or the safetie of soules is ieoparded, must be vtterlie taken away, because they are repugna~t to the word of God. Neither did he alone iudge thus, but the Ciuill lawes also. In the Code De Gladiatoribus, it is the lawe of Constant. In ciuill quietnesse and domesticall peace, bloudie shewes doe not delight. But the Combate whereof we speake, is in a manner a fighting with swordes. And Leo, and Anthemius in the Title De Ferijs, in the lawe Dies Festos, decrée that dolorous sightes of wild beastes shoulde be taken away. And those sightes were, that men should be committed to Beares or Lyons. In the Digestes: Ad legem Aquiliam, in the lawe Nam ludus, it is thus written: A sport that is hurtfull is woorthie of blame. And in the Proheme of the Digestes, in Paragraph, Illud vero: Who will call those Games, whereby great offences doe arise? It is an abuse of the word, for they ought rather to be called by anie name than Games. And in the Authentickes, in the Title Vt omnes pareant Iudicibus prouinciarum, Paragraphe the first, Iustinian saith, that fortitude or manlie courage without iustice is not praise woorthie. And he addeth: that he calleth it by the name of Fortitude in his owne countrie speach. For the Romans called that Fortitude, which is ioyned with vertue. But contrariwise in the Code De Athletis: there is a lawe of Alexander Mammaea, that those which had thrise vanquished in sacred conflictes, and had bin lawfullie crowned, should afterward haue immunitie. And Ad Aquiliam, in the lawe, Qua Actione, Paragraphe, Si quis: It is decréed that if Pancratiastes had slaine his aduersarie, the lawe Aquilia should cease. And there is extant a letter of Frederick the second, which séemeth to agrée herewith. And first touching that which concerneth runners and wrestlers, we condemne not all exercises, whereby either health or strength may be exercised: But and if anie perhappes be slaine amongest them, that happeneth by chaunce and seldome, and besides the will of him that slayeth. And of that lawe Aquilia, there is a reason rendred: that the harme which is doone is not the cause of the iniurie. But in a Combate they come thereunto with a minde prepared to slaughter: and it verie seldome happeneth but that one of them is slayne. Howbeit, the letter of Frederick must be reformed to the word of God.

¹⁹ 4 The third cause is, to auoyd ignominie: I am challenged, (saith some man) But if I flie, I shall be accounted a coward, and that discredit will redownd to my whole familie. But this cause is not iust enough. For we must vse thinges, according as the dignitie of each thing shal require. If it may séeme that thine honor will be put in ieopardie, thou must not therefore aduenture thy life, for that must be more woorth to thée than anie honor. This rather must thou regard, that thou bring not anie shame to thy profession. And the common profession of all Christians is, to doe well and to suffer ill. Wherefore Princes sinne grieuouslie which giue libertie vnto such bickeringes. The fourth cause is, that hatreds, controuersies, and enmities, cannot oftentimes be otherwise finished. And that therefore triall must be made by Combat, that there may be some ende of quarels. But neither is this cause in verie déede iust enough, séeing there be other meanes to finish controuersies. For those are finished either by a consent of parties, or by the sentence of the Iudge. But if they goe yet further, the Magistrate hath the sworde, he must vse the same, and not permit the matter to Combate or chaunce. He hath weapons and Armour, he must make iust warre, and defend the innocent. Neuerthelesse he must defend him by iustice, not by the vncertaine end and fortune of Combate. Moreouer, y e cause being now knowen, the Magistrate knoweth, that the one is innocent, wherefore he ought not to abandon him to present death. The power of y e sword is not committed vnto him, to the intent he should afterward permit the same to the rashnesse and furie of two men: Nay rather he is for this cause placed in so great authoritie, that he should doe what lyeth in him: which vndoubtedlie he dooth not, if he permit controuersies to be decided by Combate.

5 The fift cause is, ²⁰ that least in an Armie all the forces should be put in perill, it is better that the whole matter shoulde stand in the danger of twaine. Yet this is not sufficient. For we must not doe euil, that good may come of it. But if thy cause be iust, why doest thou suffer the same to be hazarded in the life of one man? Thou oughtest first and formost to take héede, that thou take not vniust warre in hand: secondly to doe as much as thou canst, and to fight with all thy forces: sith iustice must not be dallied with, and placed in the fortune of twaine. There is also another cause, whereby some of the Schoolemen being ouercome (which I should not passe ouer) graunt that such a time may happen, ²¹ when Combate ought to be permitted. Of that minde was Caietanus. And if there be two Armies (saith he) and one is superiour in the equitie of the cause, but inferiour in strength by manie degrées, so as if the same should come to hande stripes, they must all of necessitie perish: it is better that the life of one man come into danger, than that the whole host should come into certaine destruction. But neither can this in verie déede be a sufficient cause, for it procéedeth of feare and desperation. For as we haue before said, God defendeth not with sword and shield, and no lesse can he ouerthrowe with fewe than with manie. But we shal perish saiest thou: How knowest thou that? Thy life is the life of God, ²² and thy cause, if it be iust, is the cause of God. But Caietanus addeth: If an innocent be pressed with the false accusation of his superiour, and that the Magistrate being corrupted, pronounceth against him the sentence of death, and the other be not able to resist: in this case, it is lawfull (saith he) to admit a Combate, if it be offered by the Magistrate. Since if it be lawfull to defend thy selfe against a robber by the highway, why may it not be lawfull against a violent accuser? For what difference is there, whether he himselfe drawe sword against thée, or whether the Magistrate doe it by his appointment? ²³ For so is it said that Dauid flue Vrias with the sword of the Ammonites. Herewith some doe yéeld: Howbeit, I sée no cause why they should so doe. For as we declared before, there is a great difference betwéene a Combate, and defence against a robber, sith in a Combat they fight by appointment: in the other by chaunce. Against a robber, to defend himselfe: ²⁴ in Combat to slay the other. What shall I then doe, wilt thou say? Euen desire helpe of the Lord, and suffer all thinges, rather than to commit anie thing against the word of God. Now let vs aunswere vnto their Argumentes.

²⁵ 6 We must obay the Magistrate (say they:) I graunt, but yet sauing our conscience and duetie vnto God. Controuersies (say they) can be finished no other way: Yes verilie, I taught before by what meanes they may be finished. Godlie princes haue in such wise fought: Though they were godlie, yet were they also men, and they might erre and be deceaued. And most prudentlie dooth Demosthenes aunswere: We must liue by lawes, and not by examples. It is lawfull (say they) to vse Lottes, therefore it is lawfull to vse Combate. I aunswere, although there be some Lotte in Combate, yet is there slaughter added therewithall. But euen Ionas thou saiest, ²⁶ was by Lottes cast foorth into the Sea: Nay rather he was in verie déed found out by Lottes, but not cast foorth. Howbeit, he being a prophet willed himselfe to be cast in by the commaundement and inspiration of God. Warre may lawfullie be made, therefore a Combate they say. Nay rather we haue taught before, that betwéene Combat and warre there is a great difference. ²⁷ But Dauid fought with Goliah: I graunt, but yet was he led so to doe, by the inspiration of the holy spirit. Neither must all thinges which are doone by holy men, be drawen straightway vnto an example. The Hebrewes trust vp the goods of the Aegyptians: ²⁸ Abraham decréed to sacrifice his sonne: Sampson married a wife that was a stranger: but that was doone by the Lord. Wherefore we must giue eare to reasons & good lawes: For the Actes of holy men are oftentimes rather to be woondred at than followed.

7 But nowe will I set foorth vnto thée which art the Reader, ²⁹ a necessarie Combat which we must continually make. God him selfe set two aduersaries together in fight: namely the olde man and the new, the fleshe and the spirite. For as Paule saith vnto the Galathians: ³⁰ The flesh lusteth against the spirite, and the spirite against the flesh. And vnto the Romanes: ³¹ The wisedom of the flesh is enmitie against God. I know that in mee, ³² that is in my flesh, dwelleth no good thing: I feele another lawe in my members, ³³ fighting against the law of my minde. Vnhappie man that I am, who shall deliuer me? ³⁴ Let vs striue heere that sinne may not raigne in our mortall bodie, and that our olde man may be crucified. And these verily bée no light and playing pageantes. ³⁵ I (saith Paul) chastise my body and bring it into seruitude. Neither shall any be crowned vnlesse he striue as hee ought to doe. And they which contend in wrestling, abstaine themselues from al things. And no man being in the warfare of GOD, intangleth himselfe with carnall desires. And in the twelfth Chapter to the Hebrues. ³⁶ Let vs looke backe vnto Iesus Christ the Captaine and finisher of our faith. This Combat lasteth not for y e space of one houre, or moneth, or yeare, but all our life long. We haue a magnificall Theater. ³⁷ For wee are made a spectacle vnto God, vnto Angels, and vnto men. Wée haue the sworde of the word of God, and the shielde of faith, ³⁸ and for our aduersarie, we haue the deuill. For our striuing is not against flesh and bloud, but against spirituall naughtines in celestial things. Wee haue force and strength from Christ. ³⁹ I am able to doe all thinges in Christ, which comforteth me, that the victorie in the ende may be certaine. ⁴⁰ For I know whom I haue beleued, [and] that he is able to saue that which I haue committed vnto him. I haue fought a good fight, I haue kept the faith, I haue finished my course: ⁴¹ A crowne of righteousnesse is laide vp for me: And God will subdue Sathan vnder our feete.

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Footnotes

1. In 1. Sa. 17. ↩

2. Whether a combate betwéene twaine be lawfull. ↩

3. The difference betwéen war & a combate. ↩

4. Combates taken in hand either by priuate counsell, or by Princes permission. Exo. 20. 13. ↩

5. We must obey the Prince Vsque ad Aras. ↩

6. The end of euerie action. ↩

7. How euerie man may trie his owne right. ↩

8. Deut. 19. 15 ↩

9. Iere. 32. 7. &c. ↩

10. Iosua. 7. 19. ↩

11. Exod. 22. 7. ↩

12. Hebr. 6. 16. ↩

13. A combate is not lawfull for trying of suites in Lawe. Ro. 14. 24. ↩

14. Innocents are sometime slaine thereby, and GOD is tempted. ↩

15. The custom of triall of a man in Liuonia. ↩

16. Verse 12. The abuse of the Eucharist. ↩

17. Whether it be lawfull to make a combate for ostentation of strength. ↩

18. Games by which the safetie of a man is put in daunger must be abolished. ↩

19. Whether a combate may be made for the auoiding of ignominie & discredit. ↩

20. Whether it be lawful in warre le⟨…⟩ the whole Host should be put in daunger. Rom. 3. 8. ↩

21. Whether a combate be lawfull in a iust cause, and where the power in warre is the weaker. ↩

22. Whether it be lawful to make a combate if the Magistrate be corrupted against the Innocent. ↩

23. 2. Sam. 12. 9
    ↩

24. All meanes must be tried rather than to co~ mit any thing against the word of God. ↩

25. Answeres to the argumentes brought for a combate. ↩

26. Ionas. 1. 7. ↩

27. 1. Sa. 17. 60.
    ↩

28. Exo. 12. 35. Gen. 22. 3. Iud. 14. 4. ↩

29. The iust and necessarie combat⟨…⟩ ↩

30. Gal. 5. 17. ↩

31. Rom. 8. 7. ↩

32. Rom. 7. 18. ↩

33. Ib. ver. 23. ↩

34. Ibid. 24. ↩

35. 1. Cor. 9. 27 2. Tim. 2. verse. 9.
    ↩

36. Hebr. 12. 2. ↩

37. 1. Cor. 4. 9.
    ↩

38. Ephe. 6. 13. ↩

39. Phil. 4. 13. ↩

40. 2. Tim. 1. 12. 2. Tim. 4. 7.
    ↩

41. Ro. 16. 20. ↩