CHAPTER XVIII

Of the Trial by Single Combat. Argument.
N former times, when an accusa-
tion was doubtful and could not be proved, no sort of trial was more com- mon than this. For then either the accuser challenged the defendant, or else the defendant offered himself or someone else in his place to fight. It is agreed that this is a most ancient Pee and that it was used in the ands of Palestine; for Alciati * points out in his De singulari certamine, II, that Davidf challenged and overcame Goli- ath. After the invasion of Italy by the Barbarians it was chiefly practised by the Lombards, the Germans, Franks,
Sore the tribunal of God, there to answer for his misdeeds. Terror gave full effect to the ghostly citation, which the wretched man perforce obeyed, dying on 19 July, 1450.
* “Alciati.”? Andrea Alciati, 1492-1550, the famous Italian jurist.
t “David.” This Scriptural example was of old quoted by several writers in support of the wager of batile and the duel. But as early as 1240 S. Ramon de Pefiafort (““Summa,” II, tit. 2) definitely laid down that all who engage in such combats are guilty of mortal sin. Car- dinal Henry of Susa is no whit less uncompro- mising (““Aureae Summae, V, tit. ‘De Clu. pugnant’’). Alexander of Hales (‘‘Summae, IH; Q, xlvi, Mem. 3) regarded the precedent of David and Goliath as altogether an excep- tion from which no argument must be deduced. Jt was to him only permissible to refer to it in an allegorical manner as prefiguring the tri-
umph of Christ over the devil.
MALEFICARUM
149 and even Spaniards. But this sort of combat provides no proof; for it is against all law according to the unan- imous opinion of the Doctors. Sufius (De iniustitia duellt) and Pedro Mexiat (Szlva de varia leccion, IV, 9) prove that it is contrary to natural law. All the Doctors agree in proving that it is against the civil law, although that law is not very clear in detail ; yet there is no Roman law by which such com- bats can be justified. That duels are forbidden by the law of God is proved by every argument which forbids us to tempt God, and by the Command- ment that we shall dono murder. This is more clearly proved by the Ecclesi- astic, or positive Divine Law, as ex- pressed by the Council of Trent as follows: The detestable practice of duelling, introduced by the wiles of the devil that he might win the death of souls together with the bloody death of the body, should be entirely exter- minated from the Christian world, etc. (Sess. XXV; De Reform. cap. XIX). And a little later the same holy Coun- cil added the following: They who engage in duels, and they who act as seconds thereto, let them be punished with excommunication and the con- fiscation of all their goods and per- petual disgrace, and may they for ever be deprived of ecclesiastical burial like murderers, etc. There exists that most admirable Bull of Pope Gregory XIII of blessed memory, issued in the year 1582 in the month of December, which begins with these words: Crescente hominum malitia,§ facinorost non desunt.
+ “Pedro Mexia.” This famous Spanish author was born c. 1496 and died in 1552. His “Silva de varia leccion,” published at Seville in 1543, has been compared to the ‘“Noctes At- ticae’ of Aulus Gellius. Mexia was a great favourite with Charles V and collected material for a history of that monarch. This, unfor- tunately, was never written.
§ “Crescente hominum malitia.”’ Reference may also be made to the glosses of Pedro Mattet upon the Bull ‘‘Mox laudandam’’ of Gregory