much in maintenance and demonstration of the wisdom and justice of the law of the land.

|

vidence, than the suffering them to go on, and hanging men with their wounds bleeding, as they did in France.

For the Capacity of this Court, I take this to be a ground infallible: that wheresoever an To conclude, I have some petitions to make offence is capital, or matter of felony, though first to your lordship, my lord chancellor, that it be not acted, there the combination or prac-in case I be advertised of a purpose in any to tice tending to that offence is punishable in this go beyond the sea to fight, I may have granted court as a high misdemeanor. So practice to his majesty's writ of ne exeat regnum to stop impoison, though it took no effect; waylaying him, for this giant bestrideth the sea, and I to murder, though it took no effect; and the would take and snare him by the foot on this like; have been adjudged heinous misdemean- side; for the combination and plotting is on ors punishable in this court. Nay, inceptions this side, though it should be acted beyond sea. and preparations in inferior crimes, that are not And your lordship said notably the last time I capital, as suborning and preparing of witnesses made a motion in this business, that a man that were never deposed, or deposed nothing may be as well fur de se, as felo de se, if he material, have likewise been censured in this steal out of the realm for a bad purpose. As court, as appeareth by the decree in Garnon's for the satisfying of the words of the writ, no Case. man will doubt but he doth machinari contra Why then, the major proposition being such, coronam, as the words of the writ be, that seekthe minor cannot be denied: for every ap- eth to murder a subject; for that is ever pointment of the field is but combination and contra coronam et dignitatem. I have also a plotting of murder. Let them gild it how they suit to your lordships all in general, that for list, they shall never have fairer terms of me injustice sake, and for true honour's sake, honour 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 Ack. lam 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 appoint the field, though the fight be not acted or performed. 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 be yond 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 before-hand, 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, this course of preventing duels in nipping them in the bud, is fuller of clemency and pro

VOL. II.

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 coun-
tenanced and assisted from your lordships.
Lastly, I have a petition to the nobles and
gen-
tlemen 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 wor-
thy matter. But for this, ipsi viderunt, I am
resolved. And thus much for the general, now
to the present case.

DECREE of the Star-Chamber against DUELS.
In Camera Stellata coram concilio ibidem, 26
Januarii, 13 Jac. regis.

PRESENT, George lord archbishop of Canterbury, Thomas lord Ellesmere, lord chancellor of England, Henry earl of Northampton, lord privy seal. Charles earl of Nottingham, lord high admiral of England, Thomas earl of Suffolk, lord chamberlain, John lord bishop of London, Edward lord Zouch, William lord Knolles, treasurer of the houshold, Edward lord Wotton, comptroller, John lord Stanhope, vice-chamberlain, sir Edward Coke, knight, lord chief justice of England, sir Henry Hobart, knight, lord chief justice of the Common Pleas, 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, kt. his majesty's AttorneyGeneral: the one against William Priest, gent. 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, esq. for carrying and delivering the said letter and stick unto the party chal3 x

lenged, and for other contemptuous and inso- | what behind-hand, which do but feed the Jent behaviour used before the justices of the humour: adding likewise, that it was no fortipeace in Surry at their sessions, before whom tude to shew valour in a quarrel, except there he was convented. Upon the opening of which were a just and worthy ground of the quarrel; cause, his highness's said Attorney-General but that it was weakness to set a man's life at did first give his reason to the court, why, in a so mean a rate as to bestow it upon trifling case which he intended should be a leading occasions which ought to be rather offered up case for the repressing of so great a mischief in and sacrificed to honourable services, public the common-wealth, and concerning an offence merits, good causes, and noble adventures. which reigneth chiefly amongst persons of ho- And as concerning the Remedies, he connour and quality, he should begin with a cause cluded, that the only way was, that the state which had passed between so mean persons as would declare a constant and settled resothe defendants seemed to be; which he said lution to master and put down this presumpwas done, because he found this cause ready tion in private men, of whatsoever degree, of published, and in so growing an evil, he thought righting their own wrongs, and this to do at good to lose no time; whereunto he added, once; for that then every particular man that it was not amiss sometimes to beat the would think himself acquitted in his reputation, dog before the lion; saying farther, that he when that he shall see that the state takes thought it would he some motive for persons of his honour into their own hands, and standeth high birth and countenance to leave it, when between him and any interest or prejudice, they saw it was taken up by base and mecha- which he might receive in his reputation for nical fellows; but concluded, that he resolved obeying. Whereunto he added likewise, that to proceed without respect of persons for the the wisest and mildest way to suppress these time to come, and for the present to supply the Duels, was rather to punish in this court all meanness of this particular case by insisting the acts of preparation, which did in any wise the longer upon the general point. tend to the duels, as this of Challenges and the like, and so to prevent the capital punishwent, and to vex the root in the branches, than to suffer them to run on to the execution, and then to punish them capitally after the manner of France; where of late times gentlemen of great quality that had killed others in duel, were carried to the gibbet with their wounds bleeding, lest a natural death should keep them from the example of justice.

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 themselves; 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.

Thirdly, his majesty's said. Attorney-General did, by many reasons which he brought and alledged, 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. Secondly, his majesty's said Attorney-Ge- The other, for that the law hath not provided neral did discourse touching the Causes and sufficient punishment and reparation for conRemedies of this mischief that prevailed so in tumely of words, as the lye, and the like. these times; shewing the ground thereof to be Wherein his majesty's said Attorney-General a false and erroneous imagination of honour did shew, by many weighty arguments and exand credit, according to the term which was amples, that the law of England did consent given to those Duels by a former Proclama- with the law of God and the law of nations in tion of his majesty's, which called them be- both those points, and that this distinction in witching duels, for that it was no better than a murder between foul and fair, and this groundkind of sorcery, which enchanteth the spirits ing of mortal quarrels upon uncivil and reof young men, which bear great minds, with proachful words, or the like disgraces, was a shew of honour in that which is no honour never authorised by any law or ancient examindeed; being against religion, law, moral ples; but it is a late vanity crept in from the virtue, and against the precedents and exam-practice of the French, who themselves since ples 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 compounding of quarrels, who use to stand too punctually upon conceits of satisfacions and distinctions, what is before-hand, and

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,

of God, to whom, and his substitutes, all re- | Priest to pay 500/., and the said Wright 500 venge belongeth, as part of his prerogative, but marks, for their several fines to his majesty's also against the oath and duty of every subject use. And to the end, that some more public unto his majesty, for that the subject doth example may be made hereof amongst his maswear unto him by the ancient law allegiance jesty's people, the Court hath further ordered of life and member; whereby it is plainly in- and decreed, that the said Priest and Wright ferred, that the subject hath no disposing shall at the next assizes, to be holden in the power over himself of life and member to be county of Surry, publicly in face of the court, spent or ventured according to his own passions the Judges sitting, acknowledge their high con and fancies, insomuch as the very practice of tempt and offence against God, his majesty, chivalry in justs and tournays, which are but and his laws, and shew themselves penitent for images of martial actions, appear by ancient the same. precedents not to be lawful without the king's licence 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 utterly reject and condemn the opinion, that the private duel, in any person whatsoever, had any grounds of honour; as well because nothing can be honourable that is not lawful, and that it is no magnanimity or greatness of mind, but a swelling and tumour of the mind, where there faileth a right and sound judgment; as also for that it was rather justly to be esteemed a weakness, and a conscience of small value in a man's self to be dejected so with a word or trifling disgrace, as to think there is no re-cure of it, but by the hazard of life; whereas true honour in persons that know their own worth is not of any such brittle substance, but of a more strong composition. And finally, the court, shewing a firm and settled resolution to proceed with all severity against these duels, gave warning to all young noblemen and gentlemen, that they should not expect the like connivance or toleration as formerly have been, but that justice should have a full passage without protection or interruption. Adding, that after a strait inhibition, whosoever should attempt a challenge or combat, in case where the other party was restrained to answer him, as now all good subjects are, did by their own principles 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

Moreover, the wisdom of this high and honourable Court thought it meet and necessary, that all sorts of his majesty's subjects should understand and take notice of that which hath been said and handled this day touching this matter, as well by his highness's attorney-general, as by the lords judges, touching the law in such cases. And therefore the Court hath enjoined Mr. Attorney to have special care to the penning of this Decree, for the setting forth in the same summarily the matters and reasons, which have been opened and delivered by the Court touching the same; and nevertheless also at some time convenient to publish the particulars of his Speech and Declaration, as very meet and worthy to be remembered and made known unto the world, as these times are. And this Decree, being in such sort carefully drawn and penned, the whole court thought it meet, and so have ordered and decreed, that the same be not only read and published at the next assizes for Surry, at such time as the said Priest and Wright are to acknowledge their offences as aforesaid; but that the same be likewise published and made known in all shires of this kingdom. And to that end the Justices of Assize are required by this honourable court to cause this Decree to be solemnly read and published in all the places and sittings of their several circuits, and in the greatest assembly; to the end, that all his majesty's subjects may take knowledge and understand the opinion of this honourable court in this case, and in what measure his majesty and this honourable court purposeth to punish such as shall fall into the like contempt and offences hereafter. Lastly, this honourable court much approving that, which the right honourable sir Edward Coke, knight, Lord Chief Justice of England, did now deliver touching the law in this Case of Duels, bath enjoined his lordship to report the same in print, as he hath formerly done divers other cases, that such as understand not the law in that behalf, and all others, may better direct themselves, and prevent the danger thereof hereafter.

112. The Case of MARY SMITH,* for Witchcraft:† 13 JAMES I.

A. D.

MARIE wife of Henrie Smith, glover, possessed with a wrathfull indignation against some of her neighbours, in regard that they made gaine of their buying and selling cheese, which shee (using the same trade) could not doe, or they better (at the least in her opinion)

* From a curious Tract printed in 1616, with the following Title, A Treatise of Witchcraft: wherein sundry Propositions are laid 'downe, plainely discovering the wickedness of that damoable art, with diverse other special! points annexed, not impertinent to the same, such as ought diligently of every Christian tó 'be considered.-With a true Narration of the Witchcrafts which Mary Smith, wife of Henry • Smith, Glover, did practise of her contract ' vocally made between the Devil and her, in | ⚫ solemne termes, by whose meanes she hurt 'sundry persons whom she envied which is confirmed by her owne confession, and also 'from the publique Records of the Examination of diverse upon their oathes: and lastly, of her 'death and execution, for the same; which was on the twelfth day of Januarie last past.-By Alexander Roberts, B. D. and Preacher of Gods Word at Kings-Linne in Norfolke. Exod.22, 18. "Thou shalt not suffer a Witch to live."

Impium est nos illis esse Remissos, quos cœlestis Pietas,

Non Patitur impunitos: Alarus Rex apud

"Cassiodorum.

London, Printed by N. O. for Samuel Man, and are to be sold at his Shop in Pauls Church-yard at the signe of the Ball, 1616.'

"A sixth species of offences against God and religion, of which our ancient books are full, is a crime of which one knows not well what account to give. I mean the offence of witchcraft, conjuration, inchantment, or sorcery. To deny the possibility, nay, actual existence of witchcraft and sorcery, is at once flatly to contradict the revealed word of God, in various passages both of the old and new testament: and the thing itself is a truth to which every nation in the world hath in its turn born testimony, either by examples seem ingly well attested, or by prohibitory laws, which at least suppose the possibility of a commerce with evil spirits. The civil law punishes with death not only the sorcerers themselves, but also those who consult them; (Cod. 1. 9. t. 18.) imitating in the former the express law of God, (Exod. xxii. 18.) thou shalt not suffer a witch to live.' And our own laws, both before and since the conquest, have been equally penal; ranking this crime in the same class with heresy, and condemning both to the flames (3 Inst. 44.) The president Montesquieu (Sp. L. b. 12, c. 5.) ranks them also both together,

1616.

then she did, oftentimes cursed them, and became incensed with unruly passions, armed with a setled resolution, to effect some mischievous projects and designes against them. The Devell who is skilfull, and rejoyceth of such an occasion offered, and knoweth how to stirre but with a very different view: laying it down as an important maxim, that we ought to be very circumspect in the prosecution of magic and heresy; because the most unexceptionable conduct, the purest morals, and the constant practice of every duty in life, are not a sufficient security against the suspicion of crimes like these. And indeed the ridiculous stories that are generally told, and the many impos tures and delusions that have been discovered in all ages, are enough to demolish all faith in such a dubious crime, if the contrary evidence were not also extremely strong. Wherefore it seems to be the most eligible way to conclude, with an ingenious writer of our own, (Mr. Addison, Spect. No. 117.) that in general there has been such a thing as witchcraft; though one cannot give credit to any particular modern instance of it. Our forefathers were stronger believers, when they enacted by statute 33 Hen. 8. c. 8. all witchcraft and sorcery to be felony without benefit of clergy; and again by statute 1 Jac. 1. c. 12, that all persons invoking any evil spirit, or consulting, covenanting with, entertaining, employing, feeding, or rewarding any evil spirit; or taking up dead bodies from! their graves to be used in any witchcraft, sorcery, charm, or inchantment; or killing or otherwise hurting any person by such inferna! arts; should be guilty of felony without benefit of clergy, and suffer death. And, if any person should attempt by sorcery to discover hidden treasure, or to restore stolen goods, or to provoke unlawful love, or to hurt any man or beast, though the same were not effected, be or she should suffer imprisonment and pillory for the first offence, and death for the second. These acts continued in force till lately, to the terror of all ancient females in the kingdom: and many poor wretches were sacrificed thereby to the prejudice of their neighbours, and their own illusions; not a few having, by some means or other, confessed the fact at the gallows. But all executions for this dubious crime are now at an end; our legislature having at length followed the wise example of Louis 14 in France, who thought proper by an edict to restrain the tribunals of justice from receiving informations of witchcraft. And accordingly

Voltaire Siecl. Louis xiv. ch. 29. Mod. Un. Hist. xxv. 215. Yet Voughlans (de Droit Criminel, 353. 459.) still reckons up sorcery and witchcraft among the crimes punishable in France.