THE

CHARGE OF

SIR FRANCIS

BACON KNIGHT, HIS

Maiesties Attourney generall,

touching Duells, vpon an informa-

tion in the Star-Chamber against

Priest and Wright.


WITH

The Decree of the Star-chamber in

the same cause.


Printed for Robert Wilson, and are to be sold at Graies

Inne Gate, and in Paules Churchyard at the signe

of the Bible. 1614.

 


 

 

THE

CHARGE OF SIR

FRANCIS BACON

Knight his Maiesties Attour-

ney generall, touching Duells,

vpon an information in the

Star-chamber against

Priest and Wright.

 

 

Y LORDS, I thought

it fit for my place, and

for these times to

bring to hearing be-

fore 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.

And


 

6

 

And I could haue wished that I had
met with some greater persons, as a sub-
iect 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 bu-
sinesse : 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 gro-
weth 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 - surge-
geons and Butchers, and such base me-
chanicall persons.

 

And


 

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 directi-
on ; I will supplie the meanesse of the
perticular cause, by handling of the ge-
nerall poynt; to the end that by occasion
of this present cause, both my pur-
pose of prosecution against Duells, and
the opinion of the Court (without which
I am nothing) for the censure of
them may appeare, and thereby offen-
dors in that kind may read their owne
case, and know what they are to ex-
pect, 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 per-
ticular whereof your Lordships are
now to iudge, I thinke it time best spent
to speake somewhat.

 

First,


 

8

 

???? First, of the nature and greatnesse
of this mischeefe.

???? Secondly, of the causes, and reme-
dies.

???? 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 de-
fend but to assayle, and priuate men be-

ginne


9

 

ginne once to presume to giue lawe to
them-selues, and to right their owne
wrongs, noe man can foresee the dan-
gers and inconueniences that may a-
rise and multiply there-vpon. It may
cause soddaine stormes in Court, to the
disturbance of his Maiestie, and vnsaf-
tie of his person. It may grow from
quarrels, to banding, and from ban-
ding 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 distem-
pered, and vnperfect body, continually
subiect to inflamations and convul-
sions.

???? Besides, certainely, both in Diuinity
and in Pollicie, Offences of presumption
are the greatest
. Other offences yeeld

and


10

 

and consent to the law that it is good,
not daring to make defence, or to iusti-
fie 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 & Westmin-
ster
,? the Pulpet and the courts of iustice
must giue place to the law (as the King
speaketh in his proclamation) of Ordi-
nary
tables, and such reuerent assem-
blies; 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, transeamus ad illa, lets receiue
them, and not keepe the people in con-
flict and distraction betweene two
lawes.

???? Again (my Lords) it is a misera-
bIe effect, when young men, full of
towardnesse and hope, such as the

Poets


11

 

Poets cal aurora filii, sonnes of the mor-
ning, 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 no-
ble 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 king-
dome. So as your Lordships see what
a desperate euill this is ; it troubleth
peace, it disfurnisheth war, it bringeth
calamity vpon priuate men, perill vp-
on the state, and contempt vpon the
lawe.

???? Touching the causes of it; The first
motiue no doubt is a false and erroni-
ous imagination of honour and credit;
and therefore the King, in his last Pro-
clamation, doth most aptly and excel-

?lently


12

 

lently call them, bewitching Duells. For,
if one iudge of it truely , it is noe better
then a sorcery that enchanteth the spi-
rits of young men, that beare great
myndes, with a false shew, species falsa;
and a kind of satanicall illusion and ap-
parition of honour ; against religion,
against lawe, against morall vertue,
and against the presidents and exam-
ples 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 dis-
courses, and greene and vnripe con-
ceipts, 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 vul-
gar opinion is such, as it imposeth a

necessity


13

 

necessity vpon men of value to con-
forme 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 dise-
steeme 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,

good


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

this


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 therevpon hath absolute-
ly resolued to maister it, like vnto that
which was set downe in expresse words
in the edict of C H A R L E S the ninth
of France touching Duells, That the
King him-selfe tooke vpon him the honor
of all that tooke them-selues grieued or in-
teressed 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 so-
ber disposition, bee hee neuer so vali-
ant, (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

vaine

?


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 o-
ther-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 questi-
on it doth, in a fashion, countenance
and authorise this practice of Duells, as
if it had in it some-what of right.

???? Thirdly, I must acknowledge that
I learned out of the Kings last procla-

mation


17

 

mation the most prudent and best ap-
plied 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 rectissim頰lectiture 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 per-
sons 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

good


18

 

good blood in him, will comnnit an act
that shall call him into that darkenesse,
that hee may not behold his Soue-
raignes face.

???? Lastly, and that which more pro-
perly 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 iuft, but a miserablc seuerity, to
execute the law without all remission
or mercy, where the case proueth capi-
tall. 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 prcsently had
to the gibbet, in so much as gentlemen
of great quality were hanged, theyr
wounds bleeding, least a naturall
death should prevent the example of
iustice. But (my Lords) the courfe

which


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 dif-
ference 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 re-
parations for contumely of words, as
the Lie and the like.

 

But


20

 

But these are noe better then chil-
dish nouelties against the diuine lawe,
and against all lawes in effect, and a-
gainst 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 re-
uenger 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,

as


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 Ro-
man law restrayned, but to a Case, that
was, if the husband, tooke the adulterer
in the manner; to that rage and prouo-
cation onely it gaue way, that it was an
homycide was iustifiable. But for a dif-
ference to bee made in case of killing
and destroying man, vpon a fore-
thought 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

kill


22

 

kill a young man and if it here in his
hurt
: So as I see no difference be-
tweene an insidious murther, and a
brauing, or presumtuous murther, but
the difference betweene Cain and La-
med
.

???? As for examples in Ciuill states all
memory doth consent that Grecia and
Rome were the most valiant and gene-
rous Nations of the world , and that
which is more to bee noted they were
free estates, and not vnder a Monar-
chy, whereby a man would thinke it a
great deale the more reason that perti-
culer 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
vcrtue in it. Nay as he saith, fas est et,
ab hoste doceri, it is memorable that is
reported by a Councellor and Am-

bassador


23

 

bassador of the Emperors, touching
the censure of the Turkes, of these Du-
ells
; 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 repre-
hension was in these words ; How
durst you vndertake to fight one with
the other ? are there not Christians e-
nough 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 Bar-
barous hath euer despised this wherein
now men glory.

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

 

The


24

 

The one when vpon the approches
of armies in the face one of the other
perticuler persons haue made challen-
ges for triall of valors in the field , vp-
on the publike quarrell.

???? This the Romanes called, pugna per-
prouocationem
. And this was neuer, but
either betweene the Generalls them-
selues, who were absolute, or betweene
perticulers, by license of the generalls,
never 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 victo-
ry ; besides other infinite like examples
worthy and laudable, some-times by
singles, some-times by numbers.

 

The


17

 

The second Combate is a iudiciall
tryall of right, where the right is obs-
cure, introduced by the Gothes and the
Northerne Nation, but more ancient-
ly entertained in Spaine; and this yet re-
maines in some cases, as a Diuine lotte
of battayle, though controuerted by
Diuines touching the lawfulnes of it,
So that a wise writer saith, Talit鲠pug-
nantes videntur tentare Deum, quia hoc
volunt vt Deus ostendat et faciat mira-
culum, vt iustam causam habens victor
efficiatur, quod s氩 contrᠡccidit
. But
howsoeuer it bee, this kind of fight ta-
keth his warrant from law. Nay the
French themselues whence this folly
seemeth chiefely to haue flowne neuer
had it but onely in practise and tollera-
tion , 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

Gen-


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 no-
thing 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
receive like answere ; It would haue
beene thought a madnes amongst the
ancient law-giuers, to haue set a pu-
nishment vppon the lye giuen, which
in effect is but a word of deniall , a ne-
gatiue of anothers saying. Any law-
giuer, if hee had beene asked the que-
stion, 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

whe


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 deep, is
taxed by the iudgment of all wise wri-
ters, 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 contu-
mely
(whereof the lye was esteemed
none) it is not credible (but that
the Orations themselues are extant)
what extreame and cxquisite re-
proaches were tossed vp and downe
in the Senate of Rome, and the pla-
ces of assembly, and the like in
Grecia, and yet no man tooke himselfe

fow-


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 In-
iury to the person ; slander , battery, mayme, and death : And if there be ex-
traordinary 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 appre-
hension 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

of


21

 

of Consaluo the great and famous
commaunder, that was wont to say;
A Gentlemans honor should bee, De tel⼯i>
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 de-
monstration of the wisdome and iu-
stice 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 combinati-
on, or practise, tending to that offence is pu-
nishable in this Court, as a high? misdemenor
.

So practise to impoison ,though it
tooke no effect, way-laying to murther

though


30

 

though it tooke no effect, and the like,
have beene adiudged haynous misde-
meanors punishable in this Court.
Nay, inceptions and preparations in
inferior crimes (that are not capitall)
as suborning and preparing of wit-
nesses, that were neuer deposed, or de-
posed nothing materiall, haue likewise
beene censured in this Court, as ap-
peareth by the decree in Garnons case.

???? Why? then the Maior proposition
being such, the Minor cannot bee de-
nied : for every appoyntment of the
field is but combination and plotting
of murther, let them guilde it how they
list, they shall never 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

against


31

 

against Ellekar and Acklam Defen-
dants, 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, than 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 inno-
uate 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.

 

?If


24

 

If any man shall appoint the field,
though the fight be not acted or perfor-
med.

???? If any main shall send any Chal-
lenge 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 se-
cond in a Challenge, of either side.

???? If any man shall depart the Realme
with intention and agreement to per-
forme 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 be-
halfe.

???? Nay I heare there be some Counsell
learned of Duelis, that tell yong men

when


33

 

when they are before hand, and when
they are otherwise, and thereby in-
cense 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 b1e-
ding, 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 ad-
uertised of a purpose in any to goe be-
yond the sea to fight, I may haue gran-
ted his Maiesties writ of Ne exeat reg-
num
to stoppe him, for this Giant be-
strideth 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

beyond


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 feto 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 dis-
guise or puppetrey of honor, I may in
my prosecuti?hich it is like enough
may some times stirr coales (which I
esteeme 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

petition


35

 

petition to the noblesse and gentlemen
of England, that they would learne to
esteeme themselues at a iust price.
Non
hos qu泩tum 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.

 

 

 

 

 

 

 

 

 

 

 

THE


37

 

THE DECREE
OF THE STAR-

CHAMBER IN THE

SAME CAVSE.

 

In camer⠳tellat⠣oram concilio ibidem
???? 26o. die Ianuarij anno vndecimo
????
Iacobi regis.

 

The Presence.

 

THO: Lo:? Ellesmere
LORD Chancellor of
England.
?HEN: Earl of North:
L. Privie Seale

CHARLES Earle of
Notting: Lo: high
Admiral of England.

GEOR: Lo: Arch-

bishop of Canter-
bury.
IOHN Lo: Bishop of
London.
Sir
EDWARD Cooke
Knight, L: chiefe Ius-
tice of England.

 

THO:


38

THO: Earle of Suffolke
Lord Chamberlaine.

ED: Lord Zouche.

SirHEN: Hobart
knight Lord Chiefe
Iustice of the com-
mmon-pleas.

 

WILLIAM: Lo. Knolles, Treasuror of the
Houshold.

 

EDWARD Lo. Wotton Controwler.

 

IOH: Lo. Stanhop, Vicechamberlaine.

 

Sir IVLIVS C泡r knight, Chancellor of the
Exchequer:

 

 

His day was heard and de-
bated at large, the seuerall
matters of Informations
here exhibited by Sir Fran-

 

cis Bacon Knight, his Maiesties Attour-
ney Generall, th' one against William
Priest
Gentleman, for writing and
sending a Letter of challenge, toge-
there with a stick which should bee the
length of the weapon, And th' other
against Richard Wright Esquire for car-

rying


39

 

rying and deliuering the said letter and
sticke vnto the partie challenged, and
for other contemptuous and insolent
behauiour vsed before the Iustices of
Peace in Surrey at their Sessions, before
whom he was conuented. Vpon the
opening of which cause his Highnes
said Attourney generall did first giue
his reason to the Court why in a case
which he intended should be a leading
case, for the repressing of so great a
mischiefe in the commonwealth, and
concerning an offence which raigneth
chiefly amongst persons of honor and
qualitie, he should begin with a cause
which had passed betweene so meane
persons as the defendants seemed to
be ; which he said was done because
hee found this cause ready published
and in so growing an euill, he thought
good to lose no time, wherevnto he ad-
ded, that it was not amisse sometimes

to


40

 

to beate the dogge, before the Lyon,
saying further, that hee thought it
would be some motiue for persons of
birth & countenance to leaue it, when
they saw it was taken vp by base and
mechanicall fellowes, but concluded;
That hee resolued to proceed without
respect of persons for the time to
come, and for the present to supply
the meannesse of this particular Case
by insisting the longer vpon the gene-
rall point.

???? Wherein he did first expresse vnto
the Court, at large, the greatnes & dan-
gerous consequence of this presump-
tuous offence, which extorted reuenge
out of the Magistrates hand, and gaue
boldnes to priuate men to bee lawe-gi-
uers to themselues, the rather because
it is an offence that doth iustifie it selfe
against the lawe, and plainely giues
the law an affront; describing also the

miserable


41

 

miserable effect which it draweth vp-
pon priuate families by cutting off
yong men, otherwise of good hope,
and cheifely the losse of the King and
Common-wealth, by the casting a-
way of much good blood, which be-
ing spent in the field vpon occasion of
seruice were able to continew the re-
nowne, which this Kingdome hath
obtained in all ages, of being esteemed
victorious.

???? Secondly his Maiesties said Attur-
ney generall did discourse touching
the causes and remedies of this mis-
chefe, that preuaileth so in these times,
shewing the ground thereof to bee a
false and erroneous imagination of
honor and credit, according to the
terme which was giuen vnto those
Duells, by a former proclamation of
his Maiesties, which called them be-
witching Duells
, for that it is no better

then


42

 

then a kind of sorcery, which en-
chanteth the spirits of young men,
which beare great minds with a
shew of honor in that which is no
honor indeed, beeing against re-
ligion, law, morall vertue, and
against the presidents and exam-
ples of the best times, and valian-
test Nations of the world, which
though they excelled for prowesse
and millitary vertue in a publique
quarrell, yet knew not what these
priuate Duells ment : saying further,
that there was too much way and
countenance giuen vnto these Du-
ells
by the course that is held by
noble-men and gentle-men in com-
pounding of quarrells, who vse to
stand too punctually vppon con-
ceipts of satisfactions and distinc-
tions, what is before hand and what
behind hand, which doe but feed

the


43

 

the humor; Adding likewise that it
was no fortitude to shew vallour
in a quarrell, except there were a
iust and worthy ground of the qua-
rell; but that it was weakenesse to
sette a mans life at so meane a rate
as to bestowe it vppon trifling oc-
casions, which ought to bee rather
offered vp and sacrificed to ho-
nourable seruices, publique merrits,
good causes, and noble aduentures.
And as concerning the Remedies,
hee concluded: That the onely way
was, that the State would declare a
constant and settled resolution to
master and put downe this presump-
tion in priuate men, of what-soe-
uer degree of righting their owne
wrongs, and this to doe at once; For
that then every perticuler man would
think himfelse acquitted in his reputa-
tion,when that he shal see that theState

takes


44

 

takes his honor into their hands, and
standeth betweene him and any Inte-
rest, or preiudice, which he might re-
ceiue in his reputation for obeying ;
wherevnto he added likewise, that the
wisest and mildest way to suppresse
these Duells was rather to punish in
this Court all the acts of preparati-
on, which did in any wise tend to the
Duells, (as this of Challenges and the
like) and so to preuent the Capitall pu-
nishment, and to vexe the roote in the
branches, then to suffer them to run
onto the execution, and then to pu-
nish them Capitally, after the ma-
ner of France, where of late times
Gentlemen of great quality, that had
killed others in Duell, were carried to
the Gibbet with their woundes blee-
ding, least a naturall death should
keepe them from the example of
Iustice.

 

Thirdly


45

 

Thirdly his Maiesties said Attur-
ney generall did by many reasons,
which hee brought and alledged,
free the Law of England from cer-
taine vaine and childish exceptions,
which are taken by these Duellists:
The one, because the Law makes
noe difference in punishment be-
tweene an insidious and foule mur-
ther, and the killing of a man vp-
pon Challenge and faire tearmes, as
they call it, Th' other for that the
Law hath not prouided sufficient
punishment, and reparation for con-
tumelie of wordes, as the lye, and
the like: wherein his Maiesties said
Atturney generall did shew, by many
waighty arguments and examples:
That the Law of England did consent
with the Law of God, and the Law of
Nations in both those pointes, and
that this distinction in murther be-

tweene


46

 

tweene foule and fayre, and this
grounding of mortall quarrells vp-
on vnciuill and reproachfull words,
or the like disgraces, was neuer au-
thorised by any law, or ancient ex-
amples, but it is a late vanity crept
in from the practise of the French,
who themselues since haue beene
so weary of it, as they haue beene
forced to put it downe with all se-
uerity.

? ???Fourthly, his Maiesties said Attour-
ney Generall did prooue vnto the
Court by rules of law and presidents;
that this Court hath capacity to pu-
nish sending and accepting of Chal-
lenges, though they were neuer acted
nor executed; taking for a ground
infallible , that wheresoeuer an of-
fence is capitall or matter of fellony,
if it be acted and performed, there
the conspiracy, combination, or prac-

tise


47

 

tise tending to the same offence is pu-
nishable as a high misdemeanor,
although they ncuer were performed.
And therefore that practise to im-
poyson though it tooke no effect,
and the like, haue beene punished
in this Court: and cyted the president
in Garnons case, wherein a crime of
a much inferiour nature, the subor-
ning and preparing of witnesses
though they neuer were deposed, or
deposed nothing materiall, was cen-
sured in this Court, whereupon hee
concluded, that forasmuch as eue-
ry appoyntment of the field is in
law but a combination of plotting
of a murther, howsoeuer men might
guilde it: That therefore it was a
case fit for the censure of this Court;
and therein he vouched a president
in the very point, that in a case be-
twene Wharton plaintife and Elerker and

Acklam


48

 

Acklam, defendants. Acklam being a
follower of Elerker had carried a chal-
lenge vnto Wharton, and although
it were by word of mouth, and not
by writing, yet it was seuerely sen-
sured by the Court; the Decree ha-
uing wordes, that such Chalcnges
doe tend to the subuersion of govern-
ment: And therefore his Maiesties
Atturney willed the standerds by to
take notice that it was noe innouation
that he brought in, but a proceeding,
according to former presidents of the
Court, although he purposed to follow
it more throughly then had been done
euer heeretofore, because the times
did more & more require it. Lastly, his
Maieesties said Attorney generall did
declare and publish to the Court in se-
uerall Articles his purpose and reso-
lution in what cases hee did intend to
prosecute offenccs of that nature in

this


49

 

this Court, That is to say, That if a-
ny man shall appoynt the field, al-
though the fight bee not acted or per-
formed. If any man shall send any
challenge in writing, or message of
challenge: If any man shall 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 eyther part : If any man shall de-
part the Realme with intention and
agreement to performe the fight be-
yond the seas : If any man shall re-
uiue a quarrell by any scandalous
bruites or writings c?ry to a former
Proclamation, published by his ma-
iesty in that behalfe, that in all these
cases his Maiesties Atturney generall,
in discharge of his duety by the fa-
uour and assistance of his Maiesty and
the Court, would bring the offenders

of


50

 

of what state or degree soeuer to the iu-
stice of this Court, leauing the Lords
C?sioners Marshall to the more
exact remedies, adding further, that
hee heard there were certaine Coun-
cell learned of Duells, that tell yong
men when they are before hand and
when they are otherwise, and did in-
cense and incite them to the Duell,
and made an art of it, who likewise
should not be forgotten, and so con-
cluded with two petitions, the one in
perticuler to the Lord Chancellor, that
in case aduertisement were giuen of a
purpose in any to goe beyond the seas
to fight, there might bee granted his
Maiesties writte of N頥xeat regnum
against him: And the other to the
Lords in generall, that hee might bee
assisted and countenanced in this ser-
uice.

???? After which opening and declarati-

on


51

 

on of the generall cause, his Maiesties
said Atturney did proceed to set forth
the proofes of this perticuler chal-
lendge and offence now in hand and
brought to the iudgment and censure
of this honorable Court; wherevpon
it appeared to this honorable Court
by the confession of the said defendant
Priest himselfe, that hee hauing recei-
ued some wrong and disgrace at the
hands of one Hutchest, did there-
upon in reuenge thereof writ a letter to
the said Hutchest containing a chal-
lenge to fight with him at single rapier,
which letter the said Priest did deliuer
to the said defendant Wright, together
with a sticke containing the length of
the rapier, wherewith the said Priest
ment to performe the fight ; wher-
vpon the said Wright did deliuer
the said letter to the said Hutchest,
and did read the same vnto him

and


52

 

and after the reading thereof did also
deliuer to the said Hutchest the saide
sticke, saying, that the same was the
length of the weapon mentioned in
the saide Letter. But the saide Hutch-
est
, (dutifully respecting the preserua-
tion of his Maiesties peace) did refuse
the said Challeng, wherby noe further
mischeefe did ensue thereupon. This
honorable Court, and all the honora-
ble presence this day sitting, vpon
graue and mature deliberation, pon-
dering the qulality of these offences,
they generally approued the spech and
obseruations of his Maiesties saide At-
turney generall, and highly commen-
ded his great care and good seruice
in bringing a cause of this nature to
publique punishment and example,
and in professng a constant purpose
to goe on in the like course with o-
thers; letting him knowe, that hee

might


53

 

might expect from the Court all con-
currence and assistance in so good a
worke. And therevpon the Courte
did by theire seuerall oppinions and
sentences declare how much it impor-
ted the peace and prosperous estate
of his Maiestie and his kingdome to
nippe this practise and offence of Du-
ells
in the head, which now did o-
uerspread and grow vniuersall, euen
among meane persons, and was not
onely entertayned in practise and cus-
tome, but was framed into a kinde
of Art and Preceptes; so that accor-
ding to the saying of the Scripture,
Mischeefe is imagined like a lawe.
And the Court with one consent
did declare their opinions. That
by the ancient law of the land al Incep-
tions, preparations, & combinati?o
execute vnlawful acts, though they ne-
uer be performed as they be not to be

punished


54

 

punished capitally, except it bee in
case of treason, and some other per-
ticuler cases of statute law : So yet they
are punishable as misdemeanors and
contempts : And that this Court was
proper for offences of such nature,
specially in this case, where the bra-
uery and insolency of the times are
such as the ordinary Magistrates and
Iustices, that are trusted with the pre-
seruation of the Peace, are not able
to master and represse these offences,
which were by the Court at large set
forth, to bee not onely against the
law of God, to whom, and his sub-
stitutes all reuenge belongeth as part
of his prerogatiue , but also against
the oath and duety of euery subiect
vnto his Maiesty, for that the sub-
iect doth sweare vnto him, by the an-
cient law, allegeance of life and mem-
ber, whereby it is plainely inferred that

the


55

 

the subiect hath no disposing power
over himselfe of life and member to
bee spent or ventured according to his
owne passions and fancies, in-so-much
as the very practise of Chivalry in
Iusts and Turneys, which are but ima-
ges of martiall actions, appeare by an-
cient presidents not to be lawfull with-
out the Kings lycence obtained. The
Court also noted, that these private
Duells or Combats were of another na-
ture from the Combats which haue
beene allowed by the law aswell of this
land as of other nations for the tryall
of rightes or appeales. For that those
Combats receiue direction & authori-
ty from the law, wheras these contra-
riwise spring only from the vnbrideled
humors of priuate mcn. And as for the
pretence of honor, the Court much
misliking the confusion of degrees
which is growne of late (euery man

assu-


56

 

assuming vnto himself the tearme and
attribute of honor) did vtterly reiect
and condemne the opinion that the
priuate Duell, in any person whatso-
euer, had any groundes of honor, as-
well because nothing can be honora-
ble that is not lawfull, and that it is
no magnanimity or greatnes of mind,
but a swelling & tumor of the minde,
where there faileth a right and sound
Iudgement; as also for that is was ra-
ther iustly to be esteemed a weaknes,
and a conscience of smale value in a
mans selfe to be deiected, so with a
word or trifling disgrace as to thinke
there is no recure of it, but by hazard of
life, whereas true honour in persons
that know their owne, worth is not of
any such brittle substance but of a more
strong composition. And finally, the
Court shewing a firme and setled re-
solution to proceede with all seuerity

against


57

 

against these Duells gaue warning
to all young noble-men and gen-
tlemen that they should not expect
the like connyuence or tolleration
as formerly haue beene, but that
iustice should haue a full passage
without protection or interruption;
Adding that after a straight inhibi-
tion, whosoeuer should attempt a
challenge or combatte, in case where
the other party was restrayned to
answere him (as now all good sub-
iects are) did by their owne princi-
ples receiue the dishonor and dis-
grace vppon himselfe. And for the
present cause, The Court hath or-
dered, adiudged, and decreed, that
the said William Priest, and Richard
Wright
, bee committed to the
prison of the Fleete, and the said
Priest to pay fiue hundred pound,
and the said Wright fiue hundred

?markes


58

 

markes for their seuerall Fines to
his Maiesties vse. And to the end
that some more publique example
may bee made heereof amongst his
Maiesties people, The Court hath
further ordered and decreed, That
the said Priest and Wright shall at the
next Assises to bee houlden in the
County of Surrey publiquely in face
of the Court, the Iudges sitting, ac-
knowledge their high contempt and
offence against God, his Maiesty,
and his lawes, and shew themselues
penitent for the same. Moreouer
the wisdome of this high and ho-
nourable Court thought it meete
and necessary that all sorts of his
Maiesties subiects should vnder-
stand and take notice of that which
hath beene said and handled this day
touching this matter, aswell by his
highnesse Atturney general, as by

the


59

 

the Lords, Iudges, touching the law
in such cases. And therefore the
Court hath enioyned Maister At-
turney to haue speciall care to the
penning of this decree, for the set-
ting forth in the same summarily the
matters and reasons which haue
beene opened and deliuered by the
Court touching the same, and neuer-
the-lesse also at some time conueni-
ent to publish the perticulers of his
speeche and declaration, as very
meete and worthy to bee remem-
bred, and made known to the world,
as these times are: And this decree,
being in such sort carefully drawne
& penned, the whole Court thought
it meete, and so haue ordered and
decreed, that the same bee not one-
ly read and published at the next Assises
for Surrey at such time as the
said Priest and Wright are to acknow-

ledge


60

 

ledge their offences as aforesaid ; But
that the same be likewise published
and made knowne in all Shires of
this Kingdome. And to that end the
Iustices of Assize are required by this
honorable Court to cause this de-
cree to bee solemnly read and pub-
lished in all the places and sittings
of their seuerall Circuits, and in the
greatest assembly, to the end that all
his Maiesties subiects may take
knowledge and vnderstand the opi-
nion of this honorable Court in this
case, and in what measure, his Ma-
iesty, and this honorable Court pur-
poseth to punish such as shall fall into
the like contempt and offences here-
after. Lastly this honorable Court,
much approuing that which the
right honorable Sir Edward Coke
knight, Lord Chiefe Iustice of Eng-
land
did now deliuer touching the

law


61

 

law in this case of Duells, hath en-
?ioyned his Lordship to report the
same in print, as hee hath formerly
done diuers other Cases, that, such
as vnderstand not the law in that
behalfe, and all others may better
direct themselues, and preuent the
danger thereof hereafter.

 

 

 

 

 

FINIS.