There is, nevertheless, a difference between a duel and the trial by red-hot iron or boiling water. For a duel appears to be more humanly reasonable, the combatants being of similar strength and skill, than a trial by red-hot iron. For although the purpose of both is to search out something hidden by means of a human act; yet in the case of trial by red-hot iron a miraculous effect is looked for, whereas this is not so in the case of a duel, in which all that can happen is the death of either, or both, of the combatants. Therefore the trial by red-hot iron is altogether unlawful; though a duel is not illegal to the same extent. So much has been incidentally admitted in respect of duels, on account of Princes and secular Judges.
It is to be noted that, because of those words of S. Thomas which make the above distinction, Nicolas of Lyra, in his Commentary on the duel or combat between David and Goliath, 1 Regum 17, tried to prove that in some cases a duel is lawful. But Paul of Burgos proves that not this, but rather the opposite was the meaning of S. Thomas; and all Princes and secular Judges ought to pay particular attention to his proof.
His first point is that a duel, like the other trial by ordeal, has as its purpose the judgement of something hidden, which ought to be left to the judgement of God, as we have said. And it cannot be said that this combat of David is an authority for duelling; for it was revealed to him by the Lord through some inner instinct that he must engage in that combat and avenge upon the Philistine the injuries done against God, as is proved by David’s words: I come against thee in the name of the living God. So he was not properly speaking a duellist, but he was an executor of Divine justice.
His second point is that Judges must especially note that in a duel power, or at least licence, is given to each of the parties to kill the other. But since one of them is innocent, that power of licence is given for the killing of an innocent man; and this is unlawful, as being contrary to the dictates of natural law and to the teaching of God. Therefore, a duel is altogether unlawful, not only on the part of the appellant and the respondent, but also on the part of the Judge and his advisers, who are all equally to be considered homicides or parties to manslaughter.
Thirdly, he points out that a duel is a single combat between two men, the purpose of which is that the justice of the case should be made clear by the victory of one party, as if by Divine judgement, notwithstanding the fact that one of the parties is fighting in an unjust cause; and in this way God is tempted. Therefore it is unlawful on the part both of the appellant and the respondent. But considering the fact that the judges have other means of arriving at an equitable and just termination of the dispute, when they do not use such means, but advise or even permit a duel when they could forbid it, they are consenting to the death of an innocent person.
But since it is unlikely that Nicolas the Commentator was unaware or ignorant of the above reasoning, it is concluded that, when he says that in some cases a duel can be fought without mortal sin, he is speaking on the part of the Judges or advisers, namely, in a case when such a trial is undertaken, not on their responsibility or advice, but purely on that of the appellant and respondent themselves.
But since it is not our purpose to linger over and debate such considerations, but to return to the question of witches, it is clear that, if this sort of trial is forbidden in the case of other criminal causes, such as theft or robbery, still more must it be forbidden in the case of witches who, it is agreed, obtain all their power from the devil, whether it be for causing or curing an injury, for removing or for preventing an effect of witchcraft.
And it is not wonderful that witches are able to undergo this trial by ordeal unscathed with the help of devils; for we learn from naturalists that if the hands be anointed with the juice of a certain herb they are protected from burning. Now the devil has an exact knowledge of the virtues of such herbs: therefore, although he can cause the hand of the accused to be protected from the red-hot iron by invisibly interposing some other substance, yet he can procure the same effect by the use of natural objects. Hence even less than other criminals ought witches to be allowed this trial by ordeal, because of their intimate familiarity with the devil; and from the very fact of their appealing to this trial they are to be held as suspected witches.
An incident illustrative of our argument occurred hardly three years ago in the Diocese of Constance. For in the territory of the Counts of Fürstenberg and the Black Forest there was a notorious witch who had been the subject of much public complaint. At last, as the result of a general
