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 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. 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 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 cre 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. This the Romans called " Pugna per provoca-dible, but that the orations themselves are extant, tionem." And this was never, but either between the generals themselves, who are absolute, 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. 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. 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 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 be half. 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 ray 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. And thus much for the general, now to the present case. THE DECREE OF THE STAR-CHAMBER AGAINST DUELS. IN CAMERA STELLATA CORAM CONCILIO IBIDEM, 26 JANUARII, 11 JAC. REGIS. George Lord Archbishop of Canterbury. PRESENT, 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 be 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 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 to set a man's life at so mean a rate as to bestow it upon trifling occasions, which ought to be rather offered up and sacrificed to honourable services, public merits, good causes, and noble adventures. And, as concerning the remedies, he concluded, that the only way was, that the state would declare a constant and settled resolution to master, and put down this presumption in private men, of whatsoever degree, of righting their own wrongs, and this to do at once; for, that then every particular man would think himself acquitted in his reputation, when that he shall see that the state takes his honour into their own hands, and standeth between him and any interest or prejudice, which he might receive in his reputation for obeying: whereunto he added, likewise, that the wisest and mildest way to suppress these duels, was rather to punish in this court all the acts of preparation, which did in any wise tend to the duels, as this of challenges, and the like, and so to prevent the capital punishment, 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. 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 as a high misdemeanor, although they never were performed. And, therefore, that practice to empoison, though it took no effect, and the like, have been punished in this court; and cited the precedent in Garnon's case, wherein a crime of a much inferior nature, the suborning and preparing of witnesses, though they never were deposed, or deposed nothing material, was censured in this court: whereupon he concluded, that forasmuch as every appointment of the field is in law but a combination of plotting of a murder, howsoever men might gild it; that, therefore, it was a case fit for the censure of this court; and therein he vouched a precedent in the very point, that in a case between Wharton, plaintiff, and Ellekar and Acklam, defendants; Acklam, being a follower of Ellekar, had carried a challenge unto Wharton; and although it were by word of mouth, and not by writing, yet it was severely censured by the court; the decree having words that such challenges do tend to the subversion of government. And, therefore, his majesty's attorney willed the standers by to take notice that it was no innovation that he brought in, but a proceeding according to former precedents of the court, although he purposed to follow it more thoroughly than had been done ever heretofore, because the times did 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 mes sage 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 writ of "Ne exeat regnum" against him; and the other to the lords in general, that he might be assisted and countenanced in this service. After which opening and declaration of the general cause, his majesty's said attorney did proceed to set forth the proofs of this particular challenge and offence now in hand, and brought to the judgment and censure of this honourable court; whereupon it appeared to this honourable 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. justices that are trustea with the preservation of the peace, are not able to master and repress those offences, which were by the court at large set forth, to be not only against the law of God, to whom, and his substitutes, all revenge belongeth, as part of his prerogative, but also against the oath and duty of every subject unto his majesty, for that the subject doth swear unto him by the ancient law allegiance of life and member; 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 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 recure 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, showing a firm and settled resolution to proceed with all severity against these duels, and gave warning to all young noblemen gentlemen, that they should not expect the like connivance or toleration as formerly have been, but that justice should have a full passage, with This honourable court, and all the honourable presence this day sitting, upon grave and mature deliberation, pondering the quality of these of fences, they generally approved the speech and observations of his majesty's said attorney-general, and highly commended his great care and good service in bringing a cause of this nature to public punishment and example, and in professing a constant purpose to go on in the like course with others: letting him know, that he might expect from the court all concurrence and assistance in so good a work. And thereupon the court did by their several opinions and sentences declare how much it imported the peace and prosperous estate of his majesty and his kingdom, to nip this practice and offence of duels in the head, which now did overspread and grow universal, even among mean persons, and was not only entertained in practice and custom, but was framed into a kind of art and precepts: so that, according to the saying of the Scripture, "mis-out protection or interruption. Adding, that after chief is imagined like a law." And the court with 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 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 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 |