MY LORDS, I thought it fit for my place, and for these times to bring to hearing be­fore your Lord-ships some cause touching priuate Duells, to see if this Court can doe any good to tame and reclaime that euill which seemes vnbrideled. [Page 6] And I could haue wished that I had met with some greater persons, as a sub­iect for your censure, both because it had bin more worthy of this presence, and also the better to haue shewed the resolution my selfe hath to proceed without respect of persons in this bu­sinesse: But finding this cause on foote in my predecessors time, and published and ready for hearing, I thought to loose no time, in a mischeefe that gro­weth euery day; and besides it passeth not amisse some-times in gouernment, that the greater sort be admonished by an example made in the meaner, and the dogge to be beaten before the lyon. Nay I should thinke (my Lords) that men of birth and quality will leaue the practise, when it begins to bee vilified and come so lowe as to Barbers-surge­geons and Butchers, and such base me­chanicall persons.

[Page 7]And for the greatnesse of this presence, in which I take much comfort, both as I consider it in it selfe, and much more in respect it is by his Maiesties directi­on; I will supplie the meanesse of the perticular cause, by handling of the ge­nerall poynt; to the end that by occasi­on of this present cause, both my pur­pose of prosecution against Duells, and the opinion of the Court (without which I am nothing) for the censure of them may appeare, and thereby offen­dors in that kind may read their owne case, and know what they are to ex­pect, which may serue for a warning vntill example may bee made in some greater person, which I doubt the times will but too soone afford.

Therefore before I come to the per­ticular whereof your Lordships are now to iudge, I thinke it time best spent to speake somewhat.

[Page 8]First, of the nature and greatnesse of this mischeefe.

Secondly, of the causes, and reme­dies.

Thirdly, of the Iustice of the law of England, which some stick not to think defectiue in this matter.

Fourthly, of the capacity of this Court, where certainly the remedy of this mischeefe is best to be found.

And Fifthly, touching mine owne purpose and resolution, wherein I shall humbly craue your Lordshipps ayde and assistance.

For the mischeefe it selfe, it may please your Lord-shippes to take into your consideration that when reuenge is once extorted out of the Magistrates hand contrarie to Gods ordinance, Mihi vindicta, ego retribuam, and euery man shall beare the sword not to de­fend but to assayle, and priuate men be­ginne [Page 9] once to presume to giue lawe to them-selues, and to right their owne wrongs, noe man can foresee the dan­ders and inconueniences that may a­rise and multiply there-vpon. It may cause soddaine stormes in Court, to the disturbance of his Maiestie, and vnsaf­tie of his person. It may grow from quarrells, to banding, and from ban­ding to trooping, and so to tumulte and commotion, from perticuler persons to dissention of families and aliances, yea to nationall quarrells, according to the infinite variety of accidents, which fall not vnder fore-sight; so that the State by this meanes shal be like to a distem­pered, and vnperfect body, continually subiect to inflamations and convul­sions.

Besides, certainely, both in Diuinity and in Pollicie, Offences of presumption are the greatest. Other offences yeeld [Page 10] and consent to the law that it is good, not daring to make defence, or to iusti­fie themselues; but this offence expresly giues the Law an affront, as if there were two lawes, one a kind of Gowne-law, and the other a law of reputation, as they tearme it, so that Pauls & Westmin­ster, the Pulpet and the courts of iustice must giue place to the law (as the King speaketh in his proclamation) of Ordi­nary tables, and such reuerent assem­blies; the year books and statute books must giue place to some French and Italian pamphlets, which handle the doctrine of Duells, which if they be in the right, trans [...]amus ad illa, lets receiue them, and not keepe the people in con­flict and distraction betweene two lawes.

Againe (my Lords) it is a misera­ble effect, when young men, full of towardnesse and hope, such as the [Page 11] Poets cal aurorae filii, sonnes of the mor­ning, in whom the expectation and comfort of their friends consisteth, shall bee cast away and destroyed in such a vaine manner; but much more it is to bee deplored when so much no­ble and gentle blood shall be spilt vpon such follies, as if it were aduentured in the field in seruice of the king & realme, were able to make the fortune of a day, and to change the fortune of a king­dome. So as your Lordships see what a desperate euill this is; it troubleth peace, it disfurnisheth war, it bringeth calamity vpon priuate men, perill vp­on the state, and contempt vpon the lawe.

Touching the causes of it; The first motiue no doubt is a false and erroni­ous imagination of honour and credit; and therefore the King, in his last Pro­clamation, doth most aptly and excel­lently [Page 12] call them, bewitching Duells. For, if one iudge of it truely, it is noe better then a sorcery that enchanteth the spi­rits of young men, that beare great myndes, with a false shew, species falsa; and a kind of satanicall illusion and ap­parition of honour; against religion, against lawe, against morall vertue, and against the presidents 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 poynt.

But then the seede of this mischeefe being such, it is nourished by vaine dis­courses, and greene and vnripe con­ceipts, which neuerthelesse haue so preuayled, as though a man were staid and sober minded, and a right beleeuer touching the vanity and vnlawfulnesse of these Duells, yet the streame of vul­gar opinion is such, as it imposeth a [Page 13] necessity vpon men of value to con­forme them-selues; or else there is no liuing or looking vpon mens faces: So that we haue not to doe, in this case, so much with perticuler persons, as with vnsound and depraued opinions, like the dominations and spirits of the ayre, which the Scripture speaketh of.

Here-vnto may be added, that men haue almost lost the true notion and vnderstanding of Fortitude and Valour. For Fortitude distinguisheth of the grounds of quarrels, whether they bee iust; and not onely so, but whether they be worthy; and setteth a better price vpon mens liues then to bestow them idely, Nay it is weakenesse, and dise­steeme of a mans selfe, to put a mans life vpon such ledgier performances; A mans life is not to bee tryfled away, it is to bee offered vp and sacrificed to honorable seruices, publike merites, [Page 14] good causes, and noble aduentures. It is in expence of blood as it is in expence of mony, It is no liberality to make a profusion of mony vpon euery vaine occasion, nor noe more it is fortitude to make effusion of bloud except the cause bee of worth. And thus much for the causes of this euill.

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 fore-runners to the worke of a higher and better hand. But yet to deliuer my opinion, as may bee proper for this time and place; There bee foure things that I haue thought on, as the most effectuall for the repressing of this depraued custome of perticular Combats:

The first is, that there doe appeare and bee declared a constant and settled resolution in the State to abolish it. For [Page 15] this is a thing (my Lords) must goe downe at once, or not at all: For then euery perticular man will thinke him-selfe acquitted in his reputation, when he sees that the state takes it to heart, as an insult against the Kings power and authority, and thervpon hath absolute­ly resolued to maister it, like vnto that which was set downe in expresse words in the edict of CHARLES the ninth of France touching Duells, That the King him-selfe tooke vpon him the honor of all that tooke them-selues grieued or in­teressed for not hauing performed the Combat; So must the State doe in this businesse, and in my Conscience there is none that is but of a reasonable so­ber disposition, bee hee neuer so vali­ant, (except it bee some furious person that is like a fire-worke) but will bee glad of it, when hee shall see the law and rule of State disinterest him of a [Page 16] vaine and vnnecessarie hazard.

Secondly, care must be taken that this euill bee noe more cockered, nor the humor of it fed; wherein I humbly pray your Lordships that I may speake my mind freely, and yet be vnderstood aright. The proceedings of the great and noble Commissioners Marshall, I honor and reverence much, & of them I speake not in any sort; But I say the compounding of quarrells, which is o­ther-wise in vse, by priuate noble men and gentlemen, it is so punctuall, and hath such reference and respect vnto the receyued conceipts, whats before hand, and whats behinde hand, and I cannot tel what, as without all questi­on it doth, in a fashion, countenance and authorise this practise of Duells, as if it had in it some-what of right.

Thirdly, I must acknowledge that I learned out of the Kings last procla­mation [Page 17] the most prudent and best ap­plied remedy for this offence (if it shall please his Maiestie to vse it) that the wit of man can deuise. This offence (my Lords) is grounded vpon a false conceipt of honour, and therefore it would bee punished in the same kinde, In eo quis rectissimé plectitur in quo peccat. The fountaine of honour is the King, and his aspect, and the accesse to his person continueth honour in life, and to be banished from his presence is one of the greatest eclipses of honour that can bee; if his Maiestie shall be pleased that when this Court shall censure any of these offences in persons of eminent quality, to adde this out of his owne power and discipline, that these per­sons shall bee banished and excluded from his Court for certaine yeares, and the Courts of his Queene and Prince, I thinke there is noe man that hath any [Page 18] good blood in him, will commit an act that shall cast him into that darkenesse, that hee may not behold his Soue­raignes face.

Lastly, and that which more pro­perly concerneth this Court, wee see (my Lords) the root of this offence is stubborn: For it despiseth death, which is the vtmost of punishments, and it were a iust, but a miserable seuerity, to execute the law without all remission or mercy, where the case proueth capi­tall. And yet the late seuerity in France was more, where by a kind of Marshall law established by ordinance of the King and Parliament, the party that had slaine another was presently had to the gibbet, in so much as gentlemen of great quality were hanged, theyr wounds bleeding, least a naturall death should preuent the example of iustice. But (my Lords) the course [Page 19] which wee shall take is of farre greater lenity, and yet of no lesse efficacy; which is to punish, in this Court, all the middle acts and proceedings which which tend to the Duell, (which I will enumerate to you anon) and so to hew and vexe the roote in the branches, which no doubt, in the end, will kill the roote, and yet preuent the extremity of law.

Now for the law of England, I see it excepted to, though ignorantly in two poyntes;

• The one, that it should make no dif­ference betweene an insidious and foule murther, and the killing of a man vppon fayre termes, as they now call it.
• The other, that the law hath not prouided sufficient punishment, and re­parations for contumely of words, as the Lie and the like.

[Page 20]But these are noe better then chil­dish nouelties against the diuine lawe, and against all lawes in effect, and a­gainst the examples of all the brauest and most vertuous Nations of the World.

For first for the law of God, there is neuer to be found any difference made in homicide, but betweene homicide voluntary and involuntary, which we tearme misaduenture. And for the case of misaduenture it selfe, there were Citties of refuge; so that the offendor was put to his flight, & that flight was subiect to accident, whether the re­uenger of bloud should ouer-take him before he had gotten sanctuary or noe; It is true that our law hath made a more subtile distinction betweene the will enflamed, and the wil aduised, between manslaughter in heat, and murther vpon prepensed malice, or could bloud, [Page 21] as the souldiers call it, an indulgence not vnfit for a chollericke and warlike Nation, for it is true, Ira furor breuis. a man in fury is not him-selfe. This priueledge of passion the ancient Ro­man law restrayned, but to a Case, that was, if the husband, tooke the adulterer in the manner; to that rage and prouo­cation onely it gaue way, that it was an homycide was iustifiable. But for a dif­ference to bee made in case of killing and destroying man, vpon a fore­thought purpose, betweene fowle and fayre, and as it were betweene single murther and vyed murther, it is but a monstrous childe of this later age, and there is noe shadow of it in any law Diuine or humane. Onely it is true, I finde in the Scripture that CAINE inticed his brother into the field, and slew him trecherously, But LAMED vaunted of his man-hood, that he would [Page 22] kill a young man and if it were in his [...]rt: So as I see no difference be­tweene an insidious murther, and a brauing, or presumtuous murther, but the difference betweene Cain and La­med.

As for examples in Ciuill states all memory doth consent that Grecia and Rome were the most valiant and gene­rous Nations of the world, and that which is more to bee noted they were free estates, and not vnder a Monar­chy, whereby a man would thinke it a great deale the more reason that perti­culer persons should haue righted themselues; and yet they had not this practise of Duells, nor any thing that bare shew thereof; and sure they would haue had it if there had bin any vertue in it. Nay as he saith, [...]as est et, ab hoste doceri, it is memorable that is reported by a Councellor and Am­bassador [Page 23] of the Emperors, touching the censure of the Turkes, of these Du­ells; There was a Combate of this kind, performed by two persons of quality of the Turkes, wherein one of them was slaine, the other party was conuented before the Councell of Bassaes; the manner of the repre­hension was in these words; How durst you vndertake to fight one with the other? are there not Christians e­nough to kill? did you not know that whether of you should bee slaine the losse would bee the great Seigneours? So as wee may see that the most warlike Nations, whither generous or Bar­barous hath euer despised this wherein now men glory.

It is true (my Lords) that I find Com­bats of two natures authorised how iustly I will not dispute, as to the later of them.

[Page 24]The one when vpon the approches of armies in the face one of the other perticuler persons haue made challen­ges for triall of valors in the field, vp­on the publike quarrell.

This the Romanes called, pugna per-prouocationem. And this was neuer, but either betweene the Generalls them­selues, who were absolute, or betweene perticulers, by license of the generalls, neuer vpon priuate authority. So you see DAVID asked leaue when hee fought with GOLIAH, and IOAB when the armies were met, gaue leaue, and said, let the young men play before vs, and of this kind was that famous example in the wars of Naples, between twelue Spaniards and twelue Italians, where the Italians bare away the victo­ry; besides other infinite like examples worthy and laudable, some times by singles, some-times by numbers.

[Page 17]The second Combate is a iudiciall tryall of right, where the right is obs­cure, introduced by the Gothes and the Northerne Nation, but more ancient­ly entertained in Spaine; and this yet re­maines in some cases, as a Diuine lotte of battayle, though controuerted by Diuines touching the lawfulnes of it, So that a wise writer saith, Talitér pug­nantes videntur tentare Deum, quia hoc volunt vt Deus ostendat et faciat mira­culum, vt iustam causam habens victor efficiatur, quod saepé contrá accidit. But howsoeuer it bee, this kind of fight ta­keth his warrant from law. Nay the French themselues whence this folly seemeth chiefely to haue flowne neuer had it but onely in practise and tollera­tion, but neuer as authorized by law; And yet now of late they haue beene fayne to purge their folly with extreame rigour, insomuch as many [Page 26] Gentlemen left betweene death and life in the Duells (as I spake before) were hastned to hanging with their wounds bleeding. For the State found it had beene neglected so long, as no­thing could be thought cruelty which tended to the putting of it downe.

As for the second defect, pretended in our law, that it hath prouided no remedy for lies and fillippes, it may receiue like answere; It would haue beene thought a madnes amongst the ancient law-giuers, to haue set a pu­nishment vppon the lye giuen, which in effect is but a word of deniall, a ne­gatiue of anothers saying. Any law-giuer, if hee had beene asked the que­stion, would haue made Solons answer, that he had not ordained any punishment for it, because he neuer imagined the world would haue beene so fantasticall as to take it so highly. The Ciuilians they dispute [Page 27] whether an action of Iniury lie for it, and rather resolue the contrary. And Francis the first of France, who first set on & stamped this disgrace so deepe, is taxed by the iudgment of all wise wri­ters, for beginning the vanity of it; for it was hee that when hee had himselfe giuen the ly and defie to the Emperor, to make it currant in the world, said in a solemne assembly, That hee was no honest man that would beare the lye, which was the fountaine 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 themselues are extant) what extreame and exquisite re­proaches were tossed vp and downe in the Senate of Rome, and the pla­ces of assembly, and the like in Grecia, and yet no man tooke himselfe [Page 20] fowled by them, but tooke them but for breath, and the stile of an enemy, and eyther despised them or returned them, but no blood spilt about them.

So of euery touch or light blow of the person, they are not in themselues considerable, saue that they haue got vppon them the stampe of a disgrace, which maketh these light things passe for great matter. The law of England, and all lawes hold these degrees of In­iury to the person; slander, battery, mayme, and death: And if there be ex­traordinary circumstances of despight and contumely, as in case of libells and bastanadoes, and the like, this Court taketh them in hand and punisheth them exemplarly. But for this appre­hension of a disgrace, that a fillippe to the person should bee a mortall wound to the reputation, it were good that men did hearken vnto the saying [Page 21] of Consaluo the great and famous commaunder, that was wont to say; A Gentlemans honor should bee, De telâ crassiore, of a good strong warppe or webbe that euery little thing should not catch in it, when as now it seemes they are but of copwebbe lawne, or such light stuffe, which certainely is weakenesse, and not true greatnesse of mind, but like a sicke mans body, that is so tender that it feeles euery thing. And so much in maintenance and de­monstration of the wisdome and iu­stice of the law of the land.

For the capacity of this Court, I take this to bee a ground infallible, that wheresoeuer an offence is capital, or matter of fellony, if it be acted, there the combinati­on, or practise, tending to that offence is pu­nishable in this Court, as a high misdemenor. So practise to impoison, though it tooke no effect, way-laying to murther [Page 30] though it tooke no effect, and the like, haue beene adiudged haynous misde­meanors punishable in this Court. Nay, inceptions and preparations in inferior crimes (that are not capitall) as suborning and preparing of wit­nesses, that were neuer deposed, or de­posed nothing materiall, haue likewise beene censured in this Court, as ap­peareth by the decree in Garnons case.

Why? then the Maior proposition being such, the Minor cannot bee de­nied: for euery appoyntment of the field is but combination and plotting of murther, let them guilde it how they list, they shall neuer haue fairer termes of me in place of iustice. Then the conclusion followeth, that it is a case fit for the censure of this Court. And of this there be presidents in the very poynt of Challenge.

It was the case of Wharton, Plaintife [Page 31] against Ellekar and Acklam Defen­dants, where Acklam being a follower of Elleckars, was censured for carying a challeng from Ellecker to Wharton, though the challenge was not put in writing, but deliuered onely by word of message and there are words in the decree, that such challenges are to the subuersion of Gouernment.

These things are well knowne, and therfore I needed not so much to haue insisted vppon them, but that in this Case I would be thought not to inno­uate any thing of mine owne head, but to follow the former presidents of the Court, though I meane to doe it more throughly, because the time requires it more.

Therfore now to come to that which concerneth my part, I say, that by the fauour of the King and the Court, I will prosecute in this Court in the Cases following.

[Page 24]If any man shall appoint the field, though the fight be not acted or perfor­med.

If any man shall send any Chal­lenge in wrighting, or any message of Challenge.

If any man carry or deliuer any writing or message of Challenge.

If any man shall accept or returne a Challenge.

If any man shall accept to bee a se­cond in a Challenge, of either side.

If any man shall depart the Realme with intention and agreement to per­forme the fight beyond the seaes.

If any man shall reuiue a quarrel by any scandalous bruites or wrightings contrary to a former Proclamation published by his Maiesty in that be­halfe.

Nay I heare there be some Counsell learned of Duells, that tell yong men [Page 33] when they are before hand, and when they are otherwise, and thereby in­cense and incite them to the Duell, and make an art of it; I hope I shall meete with some of them too, and I am sure (my Lords) this course of preuenting Duels in nipping them in the budde, is fuller of clemency and prouidence then the suffering them to goe on, and hanging men with their wounds ble­ding, as they did in France.

To conclude, I haue some petitions to make, first, to your Lordshipp, my Lord Chancellor, that in case I be ad­uertised of a purpose in any to goe be­yond the sea to fight, I may haue gran­ted his Maiesties writ of Ne exeat reg­num to stoppe him, for this Giant be­strideth the sea, and I would take and snare him by the foote on this side, for the combination and plotting is on this side though it should be acted [Page 34] beyond sea. And your Lordship said notably the last time I made a motion in this busines, that a man may be as well, fur de se as felo de se, if he steale out of the Realme for a bad purpose, and for the satisfiing of the wordes of the writte, no man will doubt but he doth machinari contra coronam (as the wordes of the writte be) that seketh to murther a subiect; for that is euer, contra coronam et dignitatem. I haue also a sute to your Lordships all in general, that for Iustice sake, and for true honors sake, honor of Religion, Law, and the King our Maister against this fond and false dis­guise or puppetrey of honor, I may in my prosecutiō (which it is like enough may some times stirr coales (which I esteme not for my particular, but as it may hinder the good seruice) I may (I say) be countenanced and assisted from your Lordships: Lastly I haue a [Page 35] petition to the noblesse and gentlemen of England, that they would learne to esteeme themselues at a iust price. Non hos quaesitum munus in vsus, their blood is not to be spilt like water or a vile thing, therefore that they would rest perswaded there cannot be a forme of honor, except it be vpon a worthy matter. But for this, Ipsi viderint, I am resolued. And thus much for the generall; now to the present case.