« PreviousContinue »
they are to expect; which may serve for a warning in whom the expectation and comfort of their until example may be made in some greater person: which, I doubt, the times will but too soon afford.
Therefore, before I come to the particular, whereof your lordships are now to judge, I think it time best spent to speak somewhat:
friends consisteth, shall be cast away and destroyed in such a vain manner; but much more it is to be deplored, when so much noble and genteel blood should be spilt upon such follies, as, if it were adventured in the field in service of the king and realm, were able to make the fortune
First, Of the nature and greatness of this of a day, and to change the fortune of a kingdom. mischief.
Secondly, Of the causes and remedies. Thirdly, Of the justice of the law of England, which some stick not to think defective in this
Fourthly, Of the capacity of this court, where certainly the remedy of this mischief is best to be found.
And, fifthly, Touching mine own purpose and resolution, wherein I shall humbly crave your lordships' aid and assistance.
So as your lordships see what a desperate evil this is; it troubleth peace, it disfurnisheth war, it bringeth calamity upon private men, peril upon the state, and contempt upon the law.
Touching the causes of it; the first motive, no doubt, is a false and erroneous imagination of honour and credit: and, therefore, the king, in his last proclamation, doth most aptly and excellently call them bewitching duels. For, if one judge of it truly, it is no better than a sorcery that enchanteth the spirits of young men, that bear great For the mischief itself, it may please your minds with a false show, "species falsa;" and a lordships to take into your consideration that kind of satanical illusion and apparition of honour when revenge is once extorted out of the magis- against religion, against law,' against moral trates' hands, contrary to God's ordinance, "Mihi | virtue, and against the precedents and examples vindicta, ego retribuam," and every man shall of the best times and valiantest nations; as I bear the sword, not to defend, but to assail; and shall tell you by-and-by, when I shall show you private men begin once to presume to give law to the law of England is not alone in this point. themselves, and to right their own wrongs, no man can foresee the danger and inconveniences that may arise and multiply thereupon. It may cause sudden storms in court, to the disturbance of his majesty, and unsafety of his person: it may grow from quarrels to bandying, and from bandying to trooping, and so to tumult and commotion; from particular persons to dissension of families and alliances; yea, to national quarrels, according to the infinite variety of accidents, which fall not under foresight: so that the state by this means shall be like to a distempered and imperfect body, continually subject to inflammations and convulsions.
Besides, certainly, both in divinity and in policy, offences of presumption are the greatest. Other offences yield and consent to the law that it is good, not daring to make defence, or to justify themselves; but this offence expressly gives the law an affront, as if there were two laws, one a kind of gown-law, and the other a law of reputation, as they term it; so that Paul's and Westminster, the pulpit and the courts of justice, must give place to the law, as the king speaketh in his proclamation, of ordinary tables, and such reverend assemblies: the year-books, and statute-books, must give place to some French and Italian pamphlets, which handle the doctrine of duels, which, if they be in the right, "transeamus ad illa," let us receive them, and not keep the people in conflict and distraction between two laws.
Again, my lords, it is a miserable effect, when young men, full of towardness and hope, such as the poets call" aurora filii," sons of the morning,
But then the seed of this mischief being such, it is nourished by vain discourses, and green and unripe conceits, which, nevertheless, have so prevailed, as, though a man were staid and soberminded, and a right believer, touching the vanity and unlawfulness of these duels; yet the stream of vulgar opinion is such, as it imposeth a necessity upon men of value to conform themselves, or else there is no living or looking upon men's faces: so that we have not to do, in this case, so much with particular persons, as with unsound and depraved opinions, like the dominations and spirits of the air, which the Scripture speaketh of.
Hereunto may be added, that men have almost lost the true notion and understanding of fortitude and valour. For fortitude distinguisheth of the grounds of quarrels, whether they be just; and not only so, but whether they be worthy; and setteth a better price upon men's lives, than to bestow them idly: nay, it is weakness and disesteem of a man's self, to put a man's life upon such liedger performances: a man's life is not to be trifled away; it is to be offered up and sacrificed to honourable services, public merits, good causes, and noble adventures. It is in expense of blood, as it is in expense of money; it is no liberality to make a profusion of money upon every vain occasion, nor no more is it fortitude to make effusion of blood, except the cause be of worth. And thus much for the causes of this evil.
For the remedies, I hope some great and noble person will put his hand to this plough, and I wish that my labours of this day may be but forerunners to the work of a higher and better hand. But
yet to deliver my opinion as may be proper for this time and place, there be four things that I have thought on, as the most effectual for the repressing of this depraved custom of particular combats.
The first is, that there do appear and be declared a constant and settled resolution in the state to abolish it. For this is a thing, my lords, must go down at cnce, or not at all; for then every particular man will think himself acquitted in his reputation, when he sees that the state takes it to heart, as an insult against the king's power and authority, and thereupon hath absolutely resolved to master it; like unto that which was set down in express words in the edict of Charles IX. of France, touching duels, that the king himself took upon him the honour of all that took themselves grieved or interested for not having performed the combat. So must the state do in this business: and in my conscience there is none that is but of a reasonable, sober disposition, be he never so valiant, except it be some furious person, that is like a firework, but will be glad of it, when he shall see the law and rule of state disinterest him of a vain and unnecessary hazard.
Secondly, care must be taken that this evil be no more cockered, nor the humour of it fed; wherein I humbly pray your lordships that I may speak my mind freely, and yet be understood aright. The proceedings of the great and noble commissioners martial I honour and reverence much, and of them I speak not in any sort; but I say the compounding of quarrels, which is otherwise in use by private noblemen and gentlemen, it is so punctual, and hath such reference and respect unto the received conceits, what's beforehand, and what's behind hand, and I cannot tell what, as without all question it doth, in a fashion, countenance and authorize this practice of duels, as if it had in it somewhat of right.
Thirdly, I must acknowledge that I learned out of the king's last proclamation, the most prudent and best applied remedy for this offence, if it shall please his majesty to use it, that the wit of man can devise. This offence, my lords, is grounded upon a false conceit of honour, and, therefore, it would be punished in the same kind, "in eo quis rectissime plectitur, in quo peccat." The fountain of honour is the king and his aspect, and the access to his person continueth honour in life, and to be banished from his presence is one of the greatest eclipses of honour that can be; if his majesty shall be pleased that when this court shall censure any of these offences in persons of eminent quality, to add this out of his own power and discipline, that these persons shall be banished and excluded from his court for certain years, and the courts of his queen and prince, I think there is no man that hath any good blood in him will commit an act that shall cast him into VOL. II.-38
that darkness, that he may not behold his sove reign's face.
Lastly, and that which more properly concerneth this court: we see, my lords, the root of this offence is stubborn, for it despiseth death, which is the utmost of punishments; and it were a just but a miserable severity, to execute the law without all remission or mercy, where the case proveth capital. And yet the late severity in France was more, where, by a kind of martial law, established by ordinance of the king and parliament, the party that had slain another was presently had to the gibbet, insomuch as gentlemen of great quality were hanged, their wounds bleeding, lest a natural death should prevent the example of justice. But, my lords, the course which we shall take is of far greater lenity, and yet of no less efficacy; which is to punish, in this court, all the middle acts and proceedings which tend to the duel, which I will enumerate to you anon, and so to hew and vex the root in the branches, which, no doubt, in the end will kill the root, and yet prevent the extremity of law.
Now, for the law of England, I see it excepted to, though ignorantly, in two points;
The one, that it should make no difference between an insidious and foul murder, and the killing of a man upon fair terms, as they now call it.
The other, That the law hath not provided sufficient punishment, and reparations, for contumely of words, as the lie, and the like.
But these are no better than childish novelties against the divine law, and against all laws in effect, and against the examples of all the bravest and most virtuous nations of the world.
For, first, for the law of God, there is never to be found any difference made in homicide, but between homicide voluntary, and involuntary, which we term misadventure. And for the case of misadventure itself, there were cities of refuge; so that the offender was put to his flight, and that flight was subject to accident, whether the revenger of blood should overtake him before he had gotten sanctuary or no. It is true that our law hath made a more subtle distinction between the will inflamed and the will advised; between manslaughter in heat, and murder upon prepensed malice, or cold blood, as the soldiers call it; an indulgence not unfit for a choleric and warlike nation: for it is true, "ira furor brevis;" a man in fury is not himself. This privilege of passion the ancient Roman law restrained, but to a case: that was, if the husband took the adulterer in the manner; to that rage and provocation only it gave way, that a homicide was justifiable. But for a difference to be made in case of killing and destroying man, upon a forethought purpose, between foul and fair, and as it were between single murder and vied murder, it is but a monstrous
child of this latter age, and there is no shadow of controverted by divines, touching the lawfulness
it in any law divine or human. Only it is true, I find in the Scripture that Cain enticed his brother into the field and slew him treacherously; but Lamech vaunted of his manhood that he would kill a young man, and if it were to his hurt; so as I see no difference between an insidious murder and a braving or presumptuous murder, but the difference between Cain and Lamech.
As for examples in civil states, all memory doth consent, that Græcia and Rome were the most valiant and generous nations of the world; and, that which is more to be noted, they were free estates, and not under a monarchy; whereby a man would think it a great deal the more reason that particular persons should have righted themselves; and yet they had not this practice of duels, nor any thing that bare show thereof: and sure they would have had it, if there had been any virtue in it. Nay, as he saith, "Fas est et ab hoste doceri." It is memorable, that is reported by a counsellor ambassador of the emperor's, touching the censure of the Turks of these duels: there was a combat of this kind performed by two persons of quality of the Turks, wherein one of them was slain, the other party was convented before the council of bashaws; the manner of the reprehension was in these words: "How durst you undertake to fight one with the other? Are there not Christians enough to kill? Did you not know that whether of you shall be slain, the loss would be the Great Seignior's?" So as we may see that the most warlike nations, whether generous or barbarous, have ever despised this wherein now men glory.
It is true, my lords, that I find combats of two natures authorized, how justly I will not dispute as to the latter of them.
The one, when, upon the approaches of armies in the face one of the other, particular persons have made challenges for trial of valours in the field upon the public quarrel.
This the Romans called "Pugna per provocaionem." And this was never, but either between the generals themselves, who are absolute, at between particulars by license of the generals; never upon private authority. So you see David asked leave when he fought with Goliah; and Joab, when the armies were met, gave leave, and said, "Let the young men play before us." And of this kind was that famous example in the wars of Naples, between twelve Spaniards and twelve Italians, where the Italians bare away the victory; besides other infinite like examples worthy and laudable, sometimes by singles, sometimes by numbers.
of it: so that a wise writer saith, "Taliter pugnantes videntur tentare Deum, quia hoc volunt ut Deus ostendat et faciat miraculum, ut justam causam habens victor efficiatur, quod sæpe contra accidit." But howsoever it be, this kind of fight taketh its warrant from law. Nay, the French themselves, whence this folly seemeth chiefly to have flown, never had it but only in practice and toleration, and never as authorized by law; and yet now of late they have been fain to purge their folly with extreme rigour, insomuch as many gentlemen left between death and life in the duels, as I spake before, were hastened to hanging with their wounds bleeding. For the state found it had been neglected so long, as nothing could be thought cruelty which tended to the putting of it down.
As for the second defect pretended in our law, that it hath provided no remedy for lies and fillips, it may receive like answer. It would have been thought a madness amongst the ancient lawgivers, to have set a punishment upon the lie given, which in effect is but a word of denial, a negative of another's saying. Any lawgiver, if he had been asked the question, would have made Solon's answer: that he had not ordained any punishment for it, because he never imagined the world would have been so fantastical as to take it so highly. The civilians, they dispute whether an action of injury lie for it, and rather resolve the contrary. And Francis the First of France, who first set on and stamped this disgrace so deep, is taxed by the judgment of all wise writers for beginning the vanity of it; for it was he, that when he had himself given the lie and defy to the emperor, to make it current in the world, said in a solemn assembly, "That he was no honest man that would bear the lie:" which was the fountain of this new learning.
As for words of reproach and contumely, whereof the lie was esteemed none, it is not credible, but that the orations themselves are extant, what extreme and exquisite reproaches were tossed up and down in the senate of Rome and the places of assembly, and the like in Græcia, and yet no man took himself fouled by them, but took them but for breath, and the style of an enemy, and either despised them or returned them, but no blood spilt about them.
So of every touch or light blow of the person, they are not in themselves considerable, save that they have got upon them the stamp of a disgrace, which maketh these light things pass for great matter. The law of England, and all laws, hold these degrees of injury to the person, slander, The second combat is a judicial trial of right, battery, maim, and death; and if there be extrawhere the right is obscure, introduced by the ordinary circumstances of despite and contumely, Goths and the northern nations, but more ancient- as in case of libels, and bastinadoes, and the like, ly entertained in Spain; and this yet remains this court taketh them in hand, and punisheth in some cases as a divine lot of battle, though them exemplarily. But for this apprehension of
a disgrace, that a fillip to the person should be a mortal wound to the reputation, it were good that men did hearken unto the saying of Consalvo, the great and famous commander, that was wont to say, a gentleman's honour should be "de tela crassiore," of a good strong warp or web, that every little thing should not catch in it; when as now it seems they are but of cobweb lawn, or such light stuff, which certainly is weakness, and not true greatness of mind, but like a sick man's body, that is so tender that it feels every thing. And so much in maintenance and demonstration of the wisdom and justice of the law of the land.
For the capacity of this court, I take this to be a ground infallible: that wheresoever an offence is capital, or matter of felony, though it be not acted, there the combination or practice tending to that offence is punishable in this court as a high misdemeanor. So practice to empoison, though it took no effect; waylaying to murder, though it took no effect, and the like; have been adjudged heinous misdemeanors, punishable in this court. Nay, inceptions and preparations in inferior crimes, that are not capital, as suborning and preparing of witnesses that were never deposed, or deposed nothing material, have likewise been censured in this court, as appeareth by the decree in Garnon's case.
Why, then, the major proposition being such, the minor cannot be denied; for every appointment of the field is but combination and plotting of murder; let them gild it how they list, they shall never have fairer terms of me in place of justice. Then the conclusion followeth, that it is a case fit for the censure of the court. And of this there be precedents in the very point of challenge.
It was the case of Wharton, plaintiff, against Ellekar and Acklam, defendants, where Acklam being a follower of Ellekar's, was censured for .carrying a challenge from Ellekar to Wharton, though the challenge was not put in writing, but delivered only by word of message; and there are words in the decree, that such challenges are to the subversion of government.
If any man shall send any challenge in writing, or any message of challenge.
If any man carry or deliver any writing or message of challenge.
If any man shall accept or return a challenge. If any man shall accept to be a second in a challenge of either side.
If any man shall depart the realm, with intention and agreement to perform the fight beyond the seas.
If any man shall revive a quarrel by any scandalous bruits or writings, contrary to a former proclamation published by his majesty in that behalf.
Nay, I hear there be some counsel learned of duels, that tell young men when they are beforehand, and when they are otherwise, and thereby incense and incite them to the duel, and make an art of it; I hope I shall meet with some of them too: and I am sure, my lords, that this course of preventing duels in nipping them in the bud, is fuller of clemency and providence than the suffering them to go on, and hanging men with their wounds bleeding, as they did in France.
To conclude, I have some petitions to make, first to your lordship, my lord chancellor, that in case I be advertised of a purpose in any to go beyond the sea to fight, I may have granted his majesty's writ of "Ne exeat regnum" to stop him; for this giant bestrideth the sea, and I would take and snare him by the foot on this side; for the combination and plotting is on this side, though it should be acted beyond sea. And your lordship said notably the last time I made a motion in this business, that a man may be as well "fur de se," as “felo de se,” if he steal out of the realm for a bad purpose; as for the satisfying of the words of the writ, no man will doubt but he doth "machinari contra coronam," as the words of the writ be, that seeketh to murder a subject; for that is ever "contra coronam et dignitatem." I have also a suit to your lordships all in general, that for justice's sake, and for true honour's sake, honour of religion, law, and the king our master, against this fond and false disguise or puppetry of honour, I may, in my prosecution, which, it is like enough, may sometimes stir coals, which I esteem not for my particular, but as it may hinder the good service, I may, I say, be countenanced and assisted from your lordships. Lastly, I have a petition to the nobles and gentlemen of England, that they would
These things are well known, and therefore I needed not so much to have insisted upon them, but that in this case I would be thought not to innovate any thing of my own head, but to follow the former precedents of the court, though I mean to do it more thoroughly, because the time re-learn to esteem themselves at a just price. "Non quires it more.
Therefore, now to come to that which concerneth my part; I say that, by the favour of the king and the court, I will prosecute in this court in the cases following.
If any man shall appoint the field, though the fight be not acted or performed.
hos quæsitum munus in usus," their blood is not to be spilt like water or a vile thing; therefore, that they would rest persuaded there cannot be a form of honour, except it be upon a worthy matter. But for this, "ipsi viderint," I am resolved. And thus much for the general, now to the present
DECREE OF THE STAR-CHAMBER
IN CAMERA STELLATA CORAM CONCILIO IBIDEM, 26 JANUARII, 11 JAC. REGIS.
George Lord Archbishop of Canterbury.
Thomas Lord Ellesmere, Lord Chancellor of England.
Thomas E. of Suffolk, Lord Chamberlain.
THIS day was heard and debated at large the several matters of informations here exhibited by Sir Francis Bacon, knight, his majesty's attorneygeneral, the one against William Priest, gentleman, for writing and sending a letter of challenge, together with a stick, which should be the length of the weapon: and the other against Richard Wright, esquire, for carrying and delivering the said letter and stick unto the party challenged, and for other contemptuous and insolent behaviour used before the justices of the peace in Surry at their sessions, before whom he was convented. Upon the opening of which cause, his highness's said attorney-general did first give his reason to the court, why, in a case which he intended should be a leading case for the repressing of so great a mischief in the commonwealth, and concerning an offence which reigneth chiefly amongst persons of honour and quality, he should begin with a cause which had passed between so mean persons as the defendants seemed to be; which he said was done, because he found this cause ready published; and in so growing an evil, he thought good to lose no time; whereunto he added, that it was not amiss sometimes to beat the dog before the lion; saying farther, that he thought it would be some motive for persons of high birth and countenance to leave it, when they saw it was taken up by base and mechanical fellows; but concluded, that he resolved to proceed without respect of persons for the time to come, and for the present to supply the meanness of this particular case by insisting the longer upon the general point.
Wherein he did first express unto the court at large, the greatness and dangerous consequence of this presumptuous offence, which extorted revenge out of the magistrate's hands, and gave boldness to private men to be lawgivers to them
William Lord Knolles, Treasurer of the Household.
John Lord Stanhope, Vice-chamberlain.
Sir Edward Coke, Knight, Lord Chief Justice of Eng-
Sir Henry Hobart, Knight, Lord Chief Justice of the
Sir Julius Cæsar, Knight, Chancellor of the Exchequer.
| selves; the rather because it is an offence that doth justify itself against the law, and plainly gives the law an affront; describing also the miserable effect which it draweth upon private families, by cutting off young men, otherwise of good hope; and chiefly the loss of the king and the commonwealth, by the casting away of much good blood, which, being spent in the field upon occasion of service, were able to continue the renown which this kingdom hath obtained in all ages, of being esteemed victorious.
Secondly, his majesty's said attorney-general did discourse touching the causes and remedies of this mischief, that prevailed so in these times; showing the ground thereof to be a false and erroneous imagination of honour and credit, according to the term which was given to those duels by a former proclamation of his majesty's, which called them bewitching duels, for that it was no better than a kind of sorcery, which enchanteth the spirits of young men, which bear great minds, with a show of honour in that which is no honour indeed; being against religion, law, moral virtue, and against the precedents and examples of the best times, and valiantest nations of the world; which, though they excelled for prowess and military virtue in a public quarrel, yet know not what these private duels meant; saying, farther, that there was too much way and countenance given unto these duels, by the course that is held by noblemen and gentlemen in com pounding of quarrels, who use to stand too punctually upon conceits of satisfactions and distinctions, what is beforehand, and what is behindhand, which do but feed the humour: adding, likewise, that it was no fortitude to show valour in a quarrel, except there were a just and worthy ground of the quarrel; but, that it was weakness