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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.
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 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 As for the second defect pretended in our law, any virtue in it. Nay, as he saith, "Fas est et that it hath provided no remedy for lies and ab hoste doceri." It is memorable, that is report-fillips, it may receive like answer. It would have ed by a counsellor ambassador of the emperor's, been thought a madness amongst the ancient lawtouching the censure of the Turks of these duels: givers, to have set a punishment upon the lie there was a combat of this kind performed by given, which in effect is but a word of denial, a two persons of quality of the Turks, wherein one negative of another's saying. Any lawgiver, if of them was slain, the other party was convented he had been asked the question, would have before the council of bashaws; the manner of the made Solon's answer: that he had not ordained reprehension was in these words: "How durst any punishment for it, because he never imagined you undertake to fight one with the other? Are the world would have been so fantastical as to there not Christians enough to kill? Did you take it so highly. The civilians, they dispute not know that whether of you shall be slain, the whether an action of injury lie for it, and rather loss would be the Great Seignior's?" So as we resolve the contrary. And Francis the First of may see that the most warlike nations, whether |France, who first set on and stamped this disgenerous or barbarous, have ever despised this grace so deep, is taxed by the judgment of all wherein now men glory. 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.
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 provocationem." And this was never, but either between the generals themselves, who are absolute, or 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.
The second combat is a judicial trial of right, where the right is obscure, introduced by the Goths and the northern nations, but more anciently entertained in Spain; and this yet remains in some cases as a divine lot of battle, though
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, battery, maim, and death; and if there be extraordinary circumstances of despite and contumely, as in case of libels, and bastinadoes, and the like, this court taketh them in hand, and punisheth 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.
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 requires 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 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 learn to esteem themselves at a just price. “Non 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.
If any man shall appoint the field, though the And thus much for the general, now to the present fight be not acted or performed.
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.
William Lord Knolles, Treasurer of the Household.
John Lord Stanhope, Vice-chamberlain.
Sir Henry Hobart, Knight, Lord Chief Justice of the
Sir Julius Cæsar, Knight, Chancellor of the Exchequer.
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. Secondly, his majesty's said attorney-general Upon the opening of which cause, his highness's did discourse touching the causes and remedies said attorney-general did first give his reason to of this mischief, that prevailed so in these times; the court, why, in a case which he intended showing the ground thereof to be a false and should be a leading case for the repressing of so erroneous imagination of honour and credit, great a mischief in the commonwealth, and con- according to the term which was given to those cerning an offence which reigneth chiefly amongst duels by a former proclamation of his majesty's, persons of honour and quality, he should begin which called them bewitching duels, for that it with a cause which had passed between so mean was no better than a kind of sorcery, which persons as the defendants seemed to be; which enchanteth the spirits of young men, which bear he said was done, because he found this cause ready great minds, with a show of honour in that which published; and in so growing an evil, he thought is no honour indeed; being against religion, law, good to lose no time; whereunto he added, that it moral virtue, and against the precedents and exwas not amiss sometimes to beat the dog before the amples of the best times, and valiantest nations lion; saying farther, that he thought it would be of the world; which, though they excelled for some motive for persons of high birth and coun- prowess and military virtue in a public quarrel, tenance to leave it, when they saw it was taken yet know not what these private duels meant ; up by base and mechanical fellows; but con- | saying, farther, that there was too much way and cluded, 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
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
to set a man's life at so mean a rate as to bestow | as a high misdemeanor, although they never it upon trifling occasions, which ought to be were performed. And, therefore, that practice to rather offered up and sacrificed to honourable ser- empoison, though it took no effect, and the like, vices, public merits, good causes, and noble have been punished in this court; and cited the adventures. And, as concerning the remedies, he precedent in Garnon's case, wherein a crime of a concluded, that the only way was, that the state much inferior nature, the suborning and preparing would declare a constant and settled resolution to of witnesses, though they never were deposed, or master, and put down this presumption in private deposed nothing material, was censured in this men, of whatsoever degree, of righting their own court: whereupon he concluded, that forasmuch wrongs, and this to do at once; for, that then as every appointment of the field is in law but a every particular man would think himself ac- combination of plotting of a murder, howsoever quitted in his reputation, when that he shall see men might gild it; that, therefore, it was a case that the state takes his honour into their own fit for the censure of this court; and therein he hands, and standeth between him and any interest vouched a precedent in the very point, that in a or prejudice, which he might receive in his repu- case between Wharton, plaintiff, and Ellekar and tation for obeying: whereunto he added, likewise, Acklam, defendants; Acklam, being a follower of that the wisest and mildest way to suppress these Ellekar, had carried a challenge unto Wharton; duels, was rather to punish in this court all the and although it were by word of mouth, and not acts of preparation, which did in any wise tend by writing, yet it was severely censured by the to the duels, as this of challenges, and the like, court; the decree having words that such chaland so to prevent the capital punishment, and to lenges do tend to the subversion of government. vex the root in the branches, than to suffer them And, therefore, his majesty's attorney willed the to run on to the execution, and then to punish standers by to take notice that it was no innovathem capitally, after the manner of France: where, tion that he brought in, but a proceeding accordof late times, gentlemen of great quality that had ing to former precedents of the court, although he killed others in duel, were carried to the gibbet purposed to follow it more thoroughly than had with their wounds bleeding, lest a natural death been done ever heretofore, because the times did should keep them from the example of justice. more and more require it. Lastly, his majesty's said attorney-general did declare and publish to the court in several articles, his purpose and resolution in what cases he did intend to prosecute offences of that nature in this court; that is to say, that if any man shall appoint the field, although the fight be not acted or performed; if any man shall send any challenge in writing, or message of challenge; if any man shall 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 part; 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; that in all these cases his majesty's attorney-general, in discharge of his duty, by the favour and assistance of his majesty and the court, would bring the offenders, of what state or degree soever, to the justice of this court, leaving the lords commissioners martial to the more exact remedies: adding farther, that he heard there were certain counsel learned of duels, that tell young men when they are beforehand, and when they are otherwise, and did incense and incite them to the duel, and made an art of it; who likewise should not be forgotten. And so concluded with two petitions, the one in particular to the lord chancellor, that in case advertisement were given of a purpose in any to go beyond the seas to fight, there might be granted his majesty's
Thirdly, His majesty's said attorney-general did, by many reasons which he brought and alleged, free the law of England from certain vain and childish exceptions, which are taken by these duellists: the one, because the law makes no difference in punishment between an insidious and foul murder, and the killing a man upon challenge and fair terms, as they call it. The other, for that the law hath not provided sufficient punishment and reparation for contumely of words, as the lie, and the like: wherein his majesty's said attorney-general did show, by many weighty arguments and examples, that the law of England did consent with the law of God and the law of nations in both these points, and that this distinction in murder between foul and fair, and this grounding of mortal quarrels upon uncivil and reproachful words, or the like disgraces, was never authorized by any law or ancient examples; but it is a late vanity, crept in from the practice of the French, who themselves since have been so weary of it, as they have been forced to put it down with all severity.
Fourthly, His majesty's said attorney-general did prove unto the court, by rules of law and precedents, that this court hath capacity to punish sending and accepting of challenges, though they were never acted nor executed; taking for a ground infallible, that wheresoever an offence is capital or matter of felony, if it be acted and performed, there the conspiracy, combination, or practice tending to the same offence, is punishable
writ of "Ne exeat regnum" against him; and | justices that are trustea with the preservation of the other to the lords in general, that he might be assisted and countenanced in this service.
the peace, are not able to master and repress those offences, which were by the court at large After which opening and declaration of the ge- set forth, to be not only against the law of God, neral cause, his majesty's said attorney did pro- to whom, and his substitutes, all revenge belongceed to set forth the proofs of this particular chal-eth, as part of his prerogative, but also against lenge and offence now in hand, and brought to the oath and duty of every subject unto his mathe judgment and censure of this honourable jesty, for that the subject doth swear unto him by court; whereupon it appeared to this honourable the ancient law allegiance of life and member; court, by the confession of the said defendant, Priest himself, that he having received some wrong and disgrace at the hands of one Hutchest, did thereupon, in revenge thereof, write a letter to the said Hutchest, containing a challenge to fight with him at single rapier, which letter the said Priest did deliver to the said defendant, Wright, together with a stick containing the length of the rapier, wherewith the said Priest meant to perform the fight. Whereupon the said Wright did deliver the said letter to the said Hutchest, and did read the same unto him; and after the reading thereof, did also deliver to the said Hutchest the said stick, saying, that the same was the length of the weapon mentioned in the said letter. But the said Hutchest, dutifully respecting the preservation of his majesty's peace, did refuse the said challenge, whereby no farther mischief did ensue thereupon.
whereby it is plain inferred, that the subject hath no disposing power over himself of life and member to be spent or ventured according to his own passions and fancies, insomuch as the very practice of chivalry in justs and tournays, which are but images of martial actions, appear by ancient precedents not to be lawful without the king's license obtained. The court also noted, that these private duels or combats were of another nature from the combats which have been allowed by the law, as well of this land as of other nations, for the trial of rights or appeals. For that those combats receive direction and authority from the law; whereas these, contrariwise, spring only from the unbridled humours of private men. And as for the pretence of honour, the court much misliking the confusion of degrees which is grown of late, every man assuming unto himself the term and attribute of honour, did This honourable court, and all the honourable utterly reject and condemn the opinion that the presence this day sitting, upon grave and mature private duel, in any person whatsoever, had any deliberation, pondering the quality of these of- grounds of honour; as well because nothing can fences, they generally approved the speech and be honourable that is not lawful, and that it is no observations of his majesty's said attorney-ge- magnanimity or greatness of mind, but a swellneral, and highly commended his great care and ing and tumour of the mind, where there faileth a good service in bringing a cause of this nature right and sound judgment; as also for that it was to public punishment and example, and in pro- rather justly to be esteemed a weakness, and a fessing a constant purpose to go on in the like conscience of small value in a man's self to be decourse with others: letting him know, that he jected so with a word or trifling disgrace, as to might expect from the court all concurrence and think there is no recure of it, but by the hazard of assistance in so good a work. And thereupon life: whereas true honour, in persons that know the court did by their several opinions and sen- their own worth, is not of any such brittle subtences declare how much it imported the peace stance, but of a more strong composition. And, and prosperous estate of his majesty and his king- finally, the court, showing a firm and settled resodom, to nip this practice and offence of duels in the lution to proceed with all severity against these head, which now did overspread and grow uni- duels, and gave warning to all young noblemen versal, even among mean persons, and was not gentlemen, that they should not expect the like only entertained in practice and custom, but was connivance or toleration as formerly have been, framed into a kind of art and precepts: so that, but that justice should have a full passage, withaccording to the saying of the Scripture, "mis-out protection or interruption. Adding, that after chief is imagined like a law." And the court with a strait inhibition, whosoever should attempt a one consent did declare their opinions: that, by the ancient law of the land, all inceptions, preparations, and combinations to execute unlawful acts, though they never be performed, as they be not to be punished capitally, except it be in the case of treason, and some other particular cases of statute law; so yet they are punishable as misdemeanors and contempts: and that this court was proper for offences of such a nature; especially in this case, where the bravery and insolency of the times are such as the ordinary magistrates and
challenge or combat, in case where the other party was restrained to answer him, as now all good subjects are, did by their own principals receive the dishonour and disgrace upon himself.
And for the present cause, the court hath ordered, adjudged, and decreed, that the said William Priest and Richard Wright be committed to the prison of the fleet, and the said Priest to pay five hundred pounds, and the said Wright five hundred marks, for their several fines to his majesty's use And to the end, that some more public example