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dagger; yet the party is guilty, because the killing of a man is the point of the indictment; then he confessed the fact. And for this gentleman, Mr. Lumsden, a Scotish gentleman, a

occasional, and not resolved on before his coming to the execution; that it was new matter thought upon and devised since his being questioned for his offence; for there was never a word thereof spoken in this examina-nation than he loved well, (and to his majesty tion: and there this is the feather you spoke of, and not the body. Whereunto sir John Hollis answered, that they might very well stand together.

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both English and Scotish were equally dear) Scoti et Angli nullo discrimine, &c. He that infuseth into his majesty's ears the least falshood concerning his judges unjustly, is like him that infuseth never so little copper into coin; they both commit a kind of treason; and for the matter of it, which was informed, for qui non bene respondet, non respondet ;' and a little to divert from this business, you, Mr. Lumsden, were a pandar to the earl of Somerset, and were his favourer in deed, but his follower in evil. Afflictio dat intellectum," let your affliction now give you sense and feeling of your sins; your service of a pandar is apparently to be shewed you by a letter under my lord of Somerset's own hand, and your answer to it. Let it then enter your heart and soul to assure yourself, that there is now no safety, protection, nor assurance, but under a religious faith in Jesus Christ; and that, ' radix

Hereupon sir Edward Coke, the chief justice of the king's-Bench, pronounced the Sentence; when he said, that he would say of this bus:ess, and his dealing therein, as Abimelech said of himself, Tu scis, Domine, quod feci in sim'plicitate cordis et munditie manuum;' and therefore would also boldly affirm, that there were none brought into question of this great business of poison, but such as in his soul and conscience were apparently guilty: He said he was no fit man for a common-place; yet he had found some records of poisoning which he would shew: as namely in the treasury 31 Ed. 3, as the king indeed had two treasuries, the one of records, the other of gold and silver; where a woman committed adultery, and after poisoned her husband. And 21 Edw. 1, Solo-justitiæ est pietas,' the foundation and root mon le Roch, a judge, was poisoned by a monk, who afterwards prayed to be delivered to the censure of the church; and he was denied, because the same was a wrong to the state to poison a judge. And it is to be observed in the first case, that poison and adultery go together; and on the second, that poison and popery go together. From Edward 3, down to 22 Henry 8, (which was a great lump of time) no mention is made of poisoning any man; and then a statute was made, that those that did poison any body should be boiled to death, and were first to be put in at the tiptoes. In this business, he said, he would tell no news, but he was not yet at the root; God forbid that those kinds of offences should be unsearched and unpunished, wheresoever they are found: There are divers sorts of poisoning, by some whereof a man shall die a month or a quarter of a year after, at sic se sentiat mori;' and shall not know in what manner he is poisoned as one Squire, a priest, should have poisoned queen Elizabeth by poisoning her saddle. This poisoning came first from popery. In this case of Weston he would never confess the indictment, because the indictinent was, that he poisoned sir Thomas Overbury with arsenick, ro-eaker and mercury sublimate; whenas indeed it was not known what poison killed him. Here the poor man conceived a scruple, that if he did not know with which of the poisons Overbury was poisoned, he was not guilty of the offence laid in the indictment; and therefore said he was not guilty of the offence. Now ut obstruatur os iniqui,' that the mouth of the wicked man may be fully stopped; after that it was resolved unto him, that the manner of killing, laid in the indictment, was not the point of the indictment, but the matter of killing; as if the indictment be, that a man was killed with a sword, whereas indeed he was killed with a

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of justice is piety. I confess I had a great suspicion out of whose quiver the murder came first; but because I had no certain proofs, I would never question them. This resolution of Weston to be mute, was very great. When he was persuaded by the bishop of London and Ely to plead, he would not: and after being promised that if he would speak, he should have a popish priest; be thereunto answered, Have I refused the godly persuasions of the bishop of London, and shall I answer to a popish priest? And for your persuasions, Mr. Lumsden, that you will not be an accuser, this is a contemptuous answer; for this is not to be an accuser, being examined of another to discover him; but your refusal in this kind of answer is a manifest contempt; and for the like offence, a great lady of the land lieth now in the Tower, only for refusing to answer being examined. Quod diabolus ad malum exposuit, Deus ad bonum exposuit;' That which the devil exposeth to evil, God disposeth to good. This refusing to discover an offender, is a contempt to a master of a family; if he should command any of his servants to tell him of an offence committed, and by whom; and the servant that is so asked shall refuse to tell him, he shall be worthy of punishment: much more any subject being examined by the king's authority and commissioners, if he shall refuse to make discovery of the truth. The statute of the 1st and 2d of Rich. 2, is, that he that doth raise false news between the king and his nobles, shall be imprisoned for the space of a year; I think fit that Mr. Lumsden's imprisonment should be for a year, and afterwards, until he should produce his author. As for sir John Hollis, his fault of questioning and counselling it is very great, the same being made after a verdict; for if a man commit treason the 20th day of May, and sell his lands the 5th day, and

after is indicted that he did commit the treason | yet a little knowledge of the common-law of the 1st day, which goes before the sale, and after is found guilty of this indictinent; he that is to lose the land cannot deny this verdict, and say the treason was committed the 20th day, though it concern him for all that he hath of laying; if that he that is to be undone by a verdict shall not speak cross matter to a verdict (as the books of Ed. 3, and Ed. 1, are, and 11 Hen. 4, 53 Estophel. 137,) what shall be done to him that having no cause in a matter capital, wherein he had nothing to do, would intermeddle? For as the law saith, Turpis est admissio rei ad se non pertinentis.' Sir John said, that it hath been a custom to ask questions at those times, and that he did usually go to executions. For his own part, he said, that ever since he was a scholar, and had read those verses of Ovid, Trist. iii. 5.

Et lupus et vulpes instant morientibus

this land would have been better for him than all these; it would have kept him from asking questions, and counselling in scandal of religion and justice; two of the main pillars of the kingdom, and that in cold blood. Evidence is above eloquence; the party himself acknowledged that he died justly; and those that saw him said he died penitently: so to conclude, as it was sometime said of Rome, Et quæ tanta fuit Romam tibi causa videndi,' he might very well now say of sir John Hollis his going to Tyburn, with a little alteration of the words, Et quæ tanta fuit Tyburn tibi causa videndi. For the censure, he agreed with that which had been set; and the acknowledgment of Mr. Lumsden should be also in the court of Common-Pleas and the Exchequer, because the justice of all courts may be wronged with slanderous petitions. He moved that Et quæcunque minor nobilitate fera est,' information might be made against the other gentlemen that were asking such questions as he did never like it; and therefore, he said, be these were; and that they might receive their did marvel much at the use of sir John. Sir due punishment: he meant, he said, Mr. SackJohn auswers here at the bar, and saith, that vil, sir Thomas Vavasor, and sir Henry Vane, if any thing were determined against him, he who would be a baron if attainders did not lie did humbly submit himself thereto by which in the way: If these be not punished,. these term so determining, he meant, I think, as if gentlemen will think that they have wrong; we did give our censures against him by con- for 'quæ mala cum multis patimur leviora vispiracy. For my own part, I talked with none 'dentur.' He said he would wish gentlemen other, nor I think did any of us one speak with to take heed how they fell into discourses of other before we came together here. Perad- these businesses, when they be at their chamventure he thinks, as some have thought, that bers; for in the proceeding of these great buall the carriage of this business is but a con-sinesses and affairs, if a man speak irreverently spiracy against the earl of Somerset. He saith, of the justice thereof, the bird that hath wings he hath been since the prince's death but as a will reveal it. fish out of the water. I know not what he means by a fish out of the water : I have heard that Clericus in oppido, tanquam piscis in arido,' a clerk in the town is like a fish out of the water he is a justice of peace, a commissioner of Oyer and Terminer; a man of fair lands, 1500l. per annum at the least; this money is enough to be a privy-counsellor and yet sir John Hollis is like a fish out of the water. I know he hath travelled many countries, speaks many languages, hath seen many manners and customs, and knows much of foreign nations;

The Sentence was fine, imprisonment, and submission, as followeth :

Lumsden fined 2,000 marks, imprisoned in the Tower for a whole year, and after until he shall, at the King's-bench bar, submit himself and confess his fault, and also produce his authors.

Sir John Hollis was fined 1,000. imprisoned in the Tower for the space of a year.

Sir John Wentworth fined 1,000 marks, imprisoned in the Tower for a year; and both to make submission at the King's-bench bar.

111. The CASE of DUELS; or Proceedings in the Star-Chamber, against Mr. WILLIAM PRIEST for writing and sending a Challenge, and Mr. RICHARD WRIGHT for carrying it: 26th Jan. 13 JAMES I. A. D. 1615. [2 Bacon's Works, 563.]

CHARGE of Sir FRANCIS BACON, the King's

Attorney-general.

MY lords; I thought it fit for my place, and for these times, to bring to hearing before your lordships some cause touching private Duels, to see if this court can do any good to tame and reclaim that evil, which seems unbridled. And I could have wished that I had met with some greater persons, as a subject for your

of this presence, and also the better to have censure; both because it had been more worthy shewed the resolution myself hath to proceed without respect of persons in this business. But finding this cause on foot in my predecessor's time, and published and ready for hear ing, I thought to lose no time in a mischief that groweth every day: and besides, it passes not amiss sometimes in government, that the greater sort be admonished by an example made in the

meaner, and the dog to be beaten before the lion. Nay, I should think, my lords, that men of birth and quality will leave the practice,, when it begins to be vilified, and come so low as to barber-surgeons and butchers, and such base mechanical persons. And for the greatness of this presence, in which I take much, comfort, both as I consider it in itself, and much more in respect it is by his majesty's direction, I will supply the meanness of the particular cause, by handling of the general point: to the end, that by the occasion of this present cause, both my purpose of prosecution against Duels, and the opinion of the court, without which I am nothing, for the censure of them, may appear, and thereby offenders in that kind may read their own case, and know what they are to expect; which may serve for a warning 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 1. Of the nature and greatness of this mischief. | 2. Of the Causes and Remedies. 3. Of the justice of the law of England, which some stick not to think defective in this matter. 4. Of the capacity of this court, where certainly the Remedy of this Mischief is best to be found. 5. Touching mine own purpose and resolution, where I shall humbly crave your lordships

aid and assistance.

For the Mischief itself, it may please your lordships to take into your consideration, that when revenge is once extorted out of the magistrate's hands, contrary to God's ordinance, mihi vindicta, ego retribuam,' and every man shall bear the sword, not to defend, but to assail; and private men begin once to presume to give law to themselves, and to right their own wrongs; no man can foresee the danger and inconveniencies 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

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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 cail Aurore filii, sons of the morning, in whom the expectation and comfort of their 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 of a day, and to change the fortune of a kingdom. 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 minds with a false shew, species fulsa; and a kind of Satanical illusion and apparition of honour against religion, against law, against moral virtue, and against the precedents and examples of the best times and valiantest nations; as I shall tell you by and by, when I shall shew you that the law of England is not alone in this point. But then the seed of this mischief being such, it is nourished by rain discourses, and green and unripe conceits, which nevertheless have so prevailed, as though a man were staid and sober-minded, 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 mens 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 mens lives, than to bestow them idly. Nay, it is weakness and dis-esteem 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 expence of blood as it is in expence of money. It is no liberality to make a profusion of money upon every vain occasion; nor no more it is 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 once, 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 9, 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

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Thirdly, I must acknowledge, that I learned out of the king's last proclamation, the most prudent and best applied remedy for this of fence, 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 bis 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 that darkness, that he may not behold his sovereign'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 lye, 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. that rage and provocation only it gave way, that an homicide was justifiable But for a difference to be made in case of killing and destroying man, non a fore-thought 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 it in any law divine or human. Only it is true, I find in the scripture that Cain inticed his brother into the field and slew him treacher

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ously; 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 shew 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 seignor's? So as we may see that the most warlike nations, whether generous or barbarous, have ever despised this wherein now men glory.

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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 them-, selves, who were absolute, or between particulars by licence 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 controverted by divines, touching the lawfulness 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 elliciatur, quod sæpe contra accidit.' But howsoever it be, this kind of fight taketh its warrant from law. Nay, the French themselves, whence

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this folly seemeth chiefly to have flown, never had it but only in practice and toleration, and never as authorised by law; and yet now of late they have been fain to purge their folly with extreme rigour, in so much 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 lye 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 lye 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 lye:' which was the fountain of this new learning.

As for words of reproach and contumely, whereof the lye 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 stile 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 them upon 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 contunely, 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 Gonsalvo, the great and famous commander, that was wont to say, a gentleman's houour 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 stud, 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

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