Common Places, Part 4 · Chapter 19
The nineteenth Chapter. Of a ſeuerall Conflict or Combate betweene twaine hand to hand.
In 1. Sa. 17.NOwe let vsus ſée whether it bée lawefull to fight a Combat. They cōmonly call the ſame Duellum, that is, a Cō 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 yt this treatiſe may be the plainer, will call foreign, that is, where one fighteth with one, Duellum, a Combate. Whether a combate betwéene twaine be lawfull.Dauid (ſay they) fought a Combate hande to hande, therefore it is lawfull. And the fathers when they wrote vponupon 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 giuegive 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 hauehave 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. The difference betwéen war & a combate.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 onelyonly vntounto 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. Combates taken in hand either by priuate counſell, or by Princes permiſſion. Exo. 20. 13.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, We muſt obey the Prince Vſque ad Aras.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, vntounto what ende the ſame is taken in hand. The end of euerie action.And the end of eueryevery actiō hath a reſpect either of iuſtice, or iniuſtice: either of goodneſſe, or naughtineſſe. Wherefore let vsus take reaſons firſt from ye word of God, ſecondly from good lawes, & laſtlie from the end. Now let vsus enter into ye 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 onelyonly 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 hauehave 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 ye cauſe, the iuſter man was ſlaine: For the theft was found with the other. How euerie man may trie his owne right.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, Deut. 19. 15In the mouth of two or three witneſſes ſhall eueryevery word ſtand. Or by writings, Iere. 32. 7. &c.as in the 32. of Ieremie, when a néere kinſman would redéeme landes, there were bookes written and ſealed. Or by publike confeſſion: Ioſua. 7. 19.therefore Ioſua commaunded a wicked man openly to confeſſe his wickedneſſe, and to giuegive the glory vntounto God. Or by an othe, Exod. 22. 7.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. Hebr. 6. 16.Chapter to the Hebrues, that an oth is the ende of euerie controuerſie. But that ſutes in law ſhould be finiſhed by Combat, A combate is not lawfull for trying of ſuites in Lawe. Ro. 14. 24.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. Innocents are ſometime ſlaine thereby, and GOD is tempted.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 vntounto 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, The cuſtom of triall of a man in Liuonia.and that the perſon accuſed cried out that he was innocent, he for triall of himſelfe, ſhould treade with his féete vponupon 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 vntounto 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. Verſe 12. The abuſe of the Euchariſt.But of this prophanation and abuſe of the Euchariſt, they had not one worde of God in that place. Neither were the Sacraments inſtituted vntounto 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 hauehave 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. Whether it be lawfull to make a combate for oſtentation of ſtrength.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, Games by which the ſafetie of a man is put in daunger muſt be aboliſhed.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 repugnāt 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 hauehave 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.
Whether a combate may be made for the auoiding of ignominie & diſcredit.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 giuegive libertie vntounto 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, ye 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 ye ſword is not committed vntounto 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, Whether it be lawful in warre le… the whole Hoſt ſhould be put in daunger. Rom. 3. 8.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, Whether a combate be lawfull in a iuſt cauſe, and where the power in warre is the weaker.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 hauehave 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, Whether it be lawful to make a combate if the Magiſtrate be corrupted againſt the Innocent.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? 2. Sam. 12. 9For 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: All meanes muſt be tried rather than to cō mit any thing againſt the word of God.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 vsus aunſwere vntounto their Argumentes.
Anſweres to the argumentes brought for a combate.6 We muſt obay the Magiſtrate (ſay they:) I graunt, but yet ſauing our conſcience and duetie vntounto God. Controuerſies (ſay they) can be finiſhed no other way: Yes verilie, I taught before by what meanes they may be finiſhed. Godlie princes hauehave 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, Ionas. 1. 7.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 hauehave taught before, that betwéene Combat and warre there is a great difference. 1. Sa. 17. 60.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 vntounto an example. The Hebrewes truſt vp the goods of the Aegyptians: Exo. 12. 35. Gen. 22. 3. Iud. 14. 4.Abraham decréed to ſacrifice his ſonne: Sampſon married a wife that was a ſtranger: but that was doone by the Lord. Wherefore we muſt giuegive 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 vntounto thée which art the Reader, The iuſt and neceſſarie combat…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 vntounto the Galathians: Gal. 5. 17.The fleſh luſteth againſt the ſpirite, and the ſpirite againſt the fleſh. And vntounto the Romanes: Rom. 8. 7.The wiſedom of the fleſh is enmitie againſt God. I know that in mee, Rom. 7. 18.that is in my fleſh, dwelleth no good thing: I feele another lawe in my members, Ib. ver. 23.fighting againſt the law of my minde. Vnhappie man that I am, who ſhall deliuer me? Ibid. 24.Let vsus 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. 1. Cor. 9. 27 2. Tim. 2. verſe. 9.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. Hebr. 12. 2.Let vsus looke backe vntounto Ieſus Chriſt the Captaine and finiſher of our faith. This Combat laſteth not for ye ſpace of one houre, or monethmonth, or yeare, but all our life long. We hauehave a magnificall Theater. 1. Cor. 4. 9.For wee are made a ſpectacle vntounto God, vntounto Angels, and vntounto men. Wée hauehave the ſworde of the word of God, and the ſhielde of faith, Ephe. 6. 13.and for our aduerſarie, we hauehave the deuill. For our ſtriuing is not againſt fleſh and bloud, but againſt ſpirituall naughtines in celeſtial things. Wee hauehave force and ſtrength from Chriſt. Phil. 4. 13.I am able to doe all thinges in Chriſt, which comforteth me, that the victorie in the ende may be certaine. 2. Tim. 1. 12. 2. Tim. 4. 7▪For I know whom I hauehave beleued, [and] that he is able to ſaue that which I hauehave committed vntounto him. I hauehave fought a good fight, I hauehave kept the faith, I hauehave finiſhed my courſe: Ro. 16. 20.A crowne of righteouſneſſe is laide vp for me: And God will ſubdue Sathan vnderunder our feete.