more inforcing besides examples where the Lord of Hosts hath showne his power and approbation in favouring of battels undertaken for his cause To say si bellum sit licitum quidni duellum if a War be lawfull why not a Duell It followeth not for howsoever Majus and Minus change not the species and kinds of things as we say in the Schooles yet is there great discrepance betwixt the two for battels are approved by the authoritie of God nature and Nations provided the causes bee lawfull and just as pro aris focis for the other there are none at all for David and Golias their fight carry no example for imitation But if any Nations have tollerated them it hath beene but such Quos sol obliqua non nisi luce videt Not the Greeks Latins Assyrians Aegyptians and the like Sect. 5. Cajetans reason for referring the event of Battels to Monomachie Where also is inserted the story of the Horatii and Curiatii AS for the first condition admitted by Cajetan for Duells which is when two armies are ready to joyne for preventing of greater bloud-shed he averreth that it is better to referre the event of a battell to a Monomachy of two then otherwise to hazard all There is nothing more memorable in all the Roman History then the experience of this in that notable not so much Monomachy as Polymachy of three brethren Romans called Horatii against other three brethren of the Alban side called Curiatii and those partly of kinne and alliance to which the decision of the victory of either of the armies by the Roman and Alban Kings with their whole armies consent was concredited Those sixe in the middle of both Armies valourously fighting for their owne private lives and credit their countreys fame and liberty having so glorious a Theatre to act so important and tragicall a combat upon did so bravely on both sides that the panting armies were in no lesse anxiety for the event of their tryalls then the perplexed combatants themselves at length the victory which seemed dubiously disposed in favours of either side begun to incline to the Albans first and that by the death of two of the Roman brethren whereupon the Roman Survaior counterfeits to fly and so was pursued by the other three but turning to the formost of his pursuers he set so furiously upon him that hee forthwith killed him then turning to the second with like fury rewarded him after the same manner Now the Survaiour of the Curiatii being brother in Law to this victorious Roman received the same lot that his brothers had from his valorous hands which afterwards caused the death of his owne Sister the last killed Albans Spouse as in the Roman Historie may be read at large Section 6. That Kings and Generals of Armies for saving of the greater bloudshed of their Souldiers have fought single for victories Examples of both A quarrell and challenge betwixt the Emperour Charles the fifth and Francis the first King of France how it tooke no effect VVHEN I say then that neither the Greeks nor Romans admitted single combats it must bee understood except in time of just warres in which either one or moe souldiers may single out a combate with one of the adverse party with permission of the Generall or else one Generall with another for saving the bloud-shed of many as Cassius and Marcellus did each of them fight with their adverse Generals yea and sometimes Kings one against another have done so for sparing the bloud of their subjects As Alexander the great did combate single with Porus King of the Indians Godfrey of Bovillon against Arnold King of the Saxons Romulus with one of the Kings of Latium and Hundick King of Saxony with a King of Denmarke and of fresher memory Charles of Aniou challenged Peter of Arragon to duell where at Burdeaux in Aquitany before the Prince of Wales for the time with swords they should have tried the right and claime that they both pretended to the Crowne of Naples but they met not just on the day and place appointed whose default it was their diverse Histories agree not like as the Histories of France and Spaine dissent upon the challenge given in a manner and accepted by Charles the 5th Emperour for the time and King of Spaine with Francis the first of that name King of France albeit Guicchardin neutrall to both and reputed as another Cornelius Tacitus for his impartiality in his History of Italy following forth the circumstances of the battell at Pavie sheweth at length how the French King Francis was beaten there and taken prisoner by the Viceroy of Naples Generall of the Imperiall forces from whence by sea he was conveighed into Spaine and how after a long and strait imprisonment he was put to so high and invaluable ransome as lightly hath not beene heard of moreover the quitting of the best branch of the patrimony of his Crowne the rites titles and interests he pretended to the Kingdome of Naples the Dutchy of Milan for the which then they had beene a swaggering His rights and soveraignties of Artois Brabant Hainault and so forth yea to the mariage of Eleonora Widow of the King of Portugall and sister to the said Emperour a ransome which he was as unwilling to pay as agree to any of the former Articles her favour being as it was unfavourable to him who otherwise was an amorous Prince and although the distressed King subscribed to all and confirmed the Articles with his promise yet it was so that often he protested even there neither did he smother it that promise what he would performe them he could not neither legally might he So that being set at liberty his two sonnes accepted in hostage for him and returned home he was charged by the Emperour for the performance of the points subscribed by him whereto he answered That it was not in his power no more than in any other Kings to alienate things belonging to the Crowne without the consent of his whole States obtained thereunto And for his promises he said That seeing extraordinary conditions had extorted them from a Prince in close prison and his consent to them violently wrung from him they must consequently be infirme for promises accessory to such like compulsions cannot be of better force and value Which with the like and better replyes when they came to the Emperours eares he forthwith challenged the King by his Heraulds of breach of faith and offered in single combate to fight with him in the quarrell which the French king accepting desired him to appoint day and place giving him the lye as often as he would say that he had falsified his promise But as their severall stories disagree upon the particulars so every one doth vindicate their owne Prince from all aspersion and staine of breach Section 7. A discourse of a combate where thirteene French Knights fought against so many Italians wherein the French
where Philippin his fortune was to be before this fatall fight Crekie likewise had vented and vaunted that hee had dipt his hand in the 〈◊〉 bloud which wrongs at least so pretended by him accumulated together drove him if the French History say right for Fides sit penes Authorem to undertake the challenge yet not without the valorous Duke his brothers threatning instigation the time place weapons judges and all agreed upon they fought couragiously both but yet so that the French having the advantage of the Sun which even then was tending towards the West by good fortune and it may be by the equity of the challenge for Perkins holds Duels not to be examens of innocency left the Savoiard dead upon the field The Spanish duell was more remarkable in its circumstance howbeit inferiour in the dignity of the combarants and in the event of their fight for although it be proverbially spoken that the French in single combat or duell are better than the Spaniard and the Spaniard in battels and greater numbers doe surpasse the French even so in Italy I have oftentimes heard that the Florentine alone is more wise and subtle than the Venetians but they againe in counsell are more wise and deliberate than the Florentines In this combate the Spaniards gave very sound proofes both of their courage and daring The discourse of it is at length and in its punctuall circumstances set downe in their Countrey story which I will briefly touch In the dayes of Charles the 5. that fortunate Prince for the time both Emperour and King of Spaine there lived in his Court Peter Torello Hierome Anca Arragonois both Gentlemen of note for so they were called and withall entire and loving Comerades these two on some occasion faling to contradictory termes from words they fell so foule that it came to a challenge from challenge to a meeting from that to fighting in which combate after some bouts Peter Torello was overthrowne by the default of his Rapier which either broke or else was beaten out of the hilt by his Antagonists furious blowes by whom he was forced instantly either to dye or sue for life who being put to that extremity condescended to accept of his life but conditionally that on the faith of a Gentleman hee should reveale that secret to none living which he might doe the more trustily seeing no other were witnesses to it but more especially seeing it was not through lack of courage on his part nor of daring but rather by chance of warre Things thus put up they returne to Court living together after their old fraternity as if never such a thing had beene amongst them never so much as a motion or whispering of it till within a certaine space of time a report of Torello his overthrow burst out which comming to his eare after it had beene blazed through the whole Court he pondered with himselfe that hee could not be avenged on his companions perfidiousnesse by a private duell againe whom hee perswaded himselfe was the onely revealer of his disgrace and that secret notwithstanding Hierome Anca certainly affirmed the discovery therof to be by a Neat-heard who unknowne of them overheard and saw them Torello therefore being set on revenge to repaire his disgrace which he beleeved was whispered and talked of by every one had recourse to the Emperour and begged at his Majesties hands that it might please him for the recovery of his reputation now in question to grant him a publike combat with his enemy who perfidiously against his plighted faith had revealed the matter whereof he made a particular rehearsall whereunto the Emperour after many instant solicitations gave way but with this restriction that first they should fight armed next that when hee should throw in betwixt them a golden rod which at solemne times he bore in his hand they should give over and not fight to death as in other combats these conditions were accepted by both parties the day and place appointed where in the Emperours presence and face of the whole Court with great pompe and solemnity the two combatants did appeare clothed first in their most sumptuous attire and accompanied with their most honorable friends from whence after low and humble reverences done first to the Emperour sitting there in his Chaire of state next to the Chancelor whom the Story highly regardeth they were conveighed every one to their own pavilion at the ends of the Carieer from whence comming forth againe armed at all peeces and as they say Cap ape they re-entred the precinct of their appointed place where after solemne oathes made that no other quarrell brought them to that hazardous encounter but the defence of their honour they commenced that memorable duell to the admiration of their beholders with uncertaine victory till in the end the Emperour throwing his golden rod betwixt them approving the courage and proofes of both caused them to be parted though without great difficulty they could not be separated Sect. 3. How Combats may bee thought permissible The relation of a Combat betwixt Iarnacke and Chastigneray in the Presence of King Henry the second of France citations of the Canon law against combats Example of a Combat where the innocent was killed that the decision of all such questions whereupon Duells were permitted ought to be left to God IN the former combats Spanish was more remarkable then the French that first it was authorized by an Emperour and then countenanced by him Wherin if any would inferre that by this I would seeme to authorize Duells hereafter the contrary shall appeare But thus much I may say If any sort of Duels should be tolerated in a Common-wealth I thinke that that which is performed after this manner wherein as in his Miles gloriosus Plautus speakes Pes pedi dextra dextrae latus lateri opponitur it is more dispensable then otherwise to permit men to butcher one another true valour strength dexterity and courage being then put to the essay although with the hazard of their lives yet not with the infallible losse of any or both as in other Combats These two examples I have brought in out of the French and Spanish Histories brieflier couched here then in their owne Countrey Registers Where they are at length and in their smallest circumstances set downe Now as here I allow of the Spanish sort of Duells if any way to be tolerated so can I not but disapprove the French King Henry the second his admitting and permitting of a Duell not betwixt two men of a privat estate nor by themselves in private neither for any remarkable injury done by one to another but in the face and presence of himselfe and Court in their shirts and so to inevitable death of either or both and for nothing but a leger or slight French quarrell as a demanti betwixt two notable persons of two illustrious houses Iarnak and Chastaigneray where
the fortune of the fight favouring the weaker for the time to wit Iarnak sent his adversary if not from the field to the grave yet so sore wounded that within few dayes thereafter he dyed I might have alleadged moe of former ages but that the neerer our owne dayes things fall out they bring with them the greater credit to the present times Charles the fifth his example may bee thought to be tolerable and though by the constitutions or rather permissions of some Princes Duells have beene tolerated as particularly when the notoriousnesse of a fact as of murther can neither be proved by witnesses nor oathes of parties and such other legall wayes which sort of proofes the Civilians call a vulgar sort of probation as in the Decretalls lib. 2. quest 5. cap. consuluistis cap. De Monomachia is apparent Neverthelesse the civill lawes as well as the Canon do absolutly condemne them because say they it is a fallacious proofe the order of nature favouring commonly the stronger above the innocent As in the Decretalls cap. supra citato de purgatione vulgari is manifest by a case propounded of two who upon accusations of theft challenged each other to Combat where the stronger having overthrowne the weaker was found neverthelesse guilty for the goods in question were at last found in the Victors house To say here What shall a Prince doe when hee is importuned by one for Iustice of such or such a man for this or the like crimes but to referre it to a Monomachy or Duell seeing other proofes faile I answer that by such meanes both God and the King are tempted for if God hath reserved to himselfe the discovery of what by all searching cannot be discovered is not that an intolerable importunity to pry or search any farther in that but that the Magistrate all legall proofes being used doe absolve him whom secundum allegata probata hee findeth innocent and refer to the all-seeing and all knowing God the punishment of him who is guilty seeing in his owne time he can by meanes unsearch'd by men bring about a punishment on him whom peradventure the civill Iudge hath absolved for otherwise it should seeme that we were suing after a miracle by permitting a Combat for proofe as was used in Linonia or Lapland in like cases as may bee seene in the aforesaid Chapter De probatione Vulgari in the Decretalls for there saith the Canonist If any crime such as that could not be proved and that the accused or suspected cryed that he was innocent and so stood forth in the avouching of his innocency hee was forced for the more and farther proofe thereof either bare footed to tread on hot yron or else to wash his hands in hot boyling water For notwithstanding all the circumspection of Iudges in prescribing equality of armes and all the objections which can be thought on either for prescribing equall quarters to both or to save both from such treachery and circumvention Yet can neither of these caveats be so punctually and judiciously set downe but â—hat the one part may be weaker than the other neiâ—her yet have we assurance that God will ever show his justice in such Combats because it is written Thou shalt not tempt the Lord thy God Sect. 4. Severall objections for the tolleration of Duells and Combats confuted Cajetans opinion of Duells wherein also the lawfulnesse of Battells is allowed IF it be said here that David did fight in single Duel with GOLIAH That maketh not against us for that was done by the instinct of the HOLY Ghost Neither are all the deeds of the Saints to be obtruded as exemplary for all men to imitate they are rather to bee admired than followed for then Abraham his going to sacrifice his beloved and only Sonne Isaac might be an instance too for imitation But with Demosthenes we should live by Lawes not examples albeit examples are more moving at some times then lawes I find indeed that Cardinall Cajetan admits them but upon two considerations first when two Armies are ready for the shocke and yet where the most equitable part hath the fewest forces in that case saith he the event of the battel may be referred to a Duell of one of both armies for avoyding of greater bloudshed for in that case si bellum sit licitum quid ni duellum Next when any private man accused of a crime whereof he is innocent is neverthelesse borne downe by power of adverse parties if then by the Magistrates authority to whom he complaineth a Duell be offered to decide the question in that case hee admits these fights to bee permissible for why saith hee if we may safely fight with a Rogue who would rob us of our goods why not with him who would doe so with our honour it being alike to him at least the odds not being great whether he dye by his adversaries hand or by the sword of the Magistrat it being a lot of chance experimented in the person of Ionas As all the Canonists save Cajetan only in the causes and cases above-mentioned do disallow Duells so the Civilians approve them not for in the F. de gladiatoribus L. Constant. it is said that Cruenta spectacula in otio civili non placent Then Leo and Anthemius Titulo de Feriis L. Dies festos command ut lachrymosa spectacula ferarum tollantur Now if such sanguinolent and bloudy showes and baitings of Bores Leopards Bulls and Lions either amongst themselves or else of condemned persons with them yea and sometimes of venturous fellowes to try their strength and daringnesse with them were for these unnaturall sights prohibited much more thinke I should these of men one with other bee absolutely discharged Now if it be objected here that in the civill law wee find the Emperours themselves to have promised immunity and impunity to the gladiators who either had vanquished their Commerad or peradventure killed him in such fights as ad Aquiliam L. Qua actione § Si quis is evident To that I answer and not without the same Law That such killing when it did happen amongst these Luctators which were men appointed to wrestle and fight together for sport to the people who beheld them barter strokes and exchange blowes in the bottome of the Amphitheatre called Arena whilest they sate in security was not injuriae causâ or by any premeditated malice but only by meere accident without the deliberation of him qui intulit damnum whereas in these combats or Duells they flye to it on intention and resolution either to kill or to bee killed and the intention judgeth our actions not the events Neither need I for this be reputed an Anabaptist though I refute the lawfulnesse of duells by the afore-said reasons as though I therefore denied the lawfulnesse of necessary Warres because they are founded upon some apparent grounds of Scripture for out of the same we have many Warrants