THE CHARGE OF SIR FRANCIS BACON KNIGHT HIS Maiesties Attourney generall touching Duells vpon an information 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 1624. THE CHARGE OF SIR FRANCIS BACON Knight his Maiesties Attourney generall touching Duells vpon an information in the Star-chamber against Priest and Wright 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 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 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 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 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 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 transâ—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 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 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 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
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 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 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 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 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 prosecutioÌ„ 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 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 THE DECREE OF THE STAR-CHAMBER IN THE SAME CAVSE In camerâ stellatâ coram concilio ibidem 26º die Ianuarij anno vndecimo Iacobi regis The Presence THO Lo Ellesmere LORD Chancellor of England HON Earl of North L Priuie Seale CHARLES Earle of Notting Lo high Admiral of England Gâ—OR Lo Archbishop of Canterbury IOHN Lo Bishop of London Sir EDVVARD Cooke Knight L chiefe Iustice of England The Earl of Suffolk Lord Chamberlaine 〈◊〉 Lord â—oâ—che Sir Hen. Hobart Knight Lord chiefe Iustice of the common-pleas WILLIAM Lo. Knolles Treasuror of the Houshold EDVVARD Lo. Wotton Controwler IOH Lo Stanhop Vicechamberlaine Sir IVLIVS Caesar knight Chancellor of the Exchequer THis day was heard and debated at large the seuerall matters of Informations here exhibited by Sir Francis Bacon Knight his Maiesties Attourney Generall th' 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 th' other against Richard Wright Esquire for carrying 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 added that it was not amisse sometimes 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 generall point Wherein he did first expresse vnto the Court at large the greatnes dangerous consequence of this presumptuous offence which extorted reuenge out of the Magistrates hand and gaue boldnes to priuate men to bee lawe giuers 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 effect which it draweth vppon priuate families by cutting off yong men otherwise of good hope and cheifely the losse of the King and Common-wealth by the casting away of much good blood which being spent in the field vpon occasion of
be forgotten and so concluded 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 Né exeat regnum against him And the other to the Lords in generall that hee might bee assisted and countenanced in this seruice After which opening and declaration of the generall cause his Maiesties said Atturney did proceed to set forth the proofes of this perticuler challendge 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 receiued some wrong and disgrace at the hands of one Hutchest did thereupon in reuenge thereof writ a letter to the said Hutchest containing a challenge 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 whervpon the said Wright did deliuer the said letter to the said Hutchest and did read the same vnto him 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 Hutchest dutifully respecting the preseruation of his Maiesties peace did refuse the said Challeng wherby noe further mischeefe did ensue thereupon This honorable Court and all the honorable presence this day sitting vpon graue and mature deliberation pondering the qulality of these offences they generally approued the spech and obseruations of his Maiesties saide Atturney generall and highly commended his great care and good seruice in bringing a cause of this nature to publique punishment and example and in professing a constant purpose to goe on in the like course with others letting him knowe that hee might expect from the Court all concurrence and assistance in so good a worke And therevpon the Courte did by theire seuerall oppinions and sentences declare how much it imported the peace and prosperous estate of his Maiestie and his kingdome to nippe this practise and offence of Duells in the head which now did ouerspread and grow vniuersall euen among meane persons aud was not onely entertayned in practise and custome but was framed into a kinde of Art and Preceptes so that according 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 Inceptions preparations combinatiōs to execute vnlawful acts though they neuer be performed as they be not to be punished capitally except it bee in case of treason and some other perticuler 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 brauery and insolency of the times are such as the ordinary Magistrates and Iustices that are trusted with the preseruation 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 substitutes all reuenge belongeth as part of his prerogatiue but also against the oath and duety of euery subiect vnto his Maiesty for that the subiect doth sweare vnto him by the ancient law allegeance of life and member whereby it is plainely inferred that the subiect hath no disposing power ouer 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 Chiualry in Iusts and Turneys which are but images of martiall actions appeare by ancient presidents not to be lawfull without the Kings lycence obtained The Court also noted that these priuate Duells or Combats were of another nature 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 receiued rection authority from the law wheras these contrariwise spring only from the vnbrideled humors of priuate men And as for the pretence of honor the Court much misliking the confusion of degrees which is growne of late euery man assuming vnto himself the tearme and attribute of honor did vtterly reiect and condemne the opinion that the priuate Duell in any person whatsoeuer had any groundes of honor aswell because nothing can be honorable 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 it was rather 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 resolution to proceede with all seuerity against these Duells gaue warning to all young noble-men and gentlemen 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 inhibition whosoeuer should attempt a challenge or combatte in case where the other party was restrayned to answere him as now all good subiects are did by their owne principles receiue the dishonor and disgrace vppon himselfe And for the present cause The Court hath ordered 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 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 acknowledge 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 honourable Court thought it meete and necessary that all sorts of his Maiesties subiects should vnderstand and take notice of that which hath beene said and handled this day touching this matter aswell by his highnesse Atturney generall as by the Lords Iudges touching the law in such cases And therefore the Court hath enioyned Maister Atturney to haue speciall care to the penning of this decree for the setting 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 conuenient to publish the perticulers of his speeche and declaration as very meete and worthy to bee remembred 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 onely read and published at the next Assises for Surrey at such time as the said Priest and Wright are to acknowledge their offences as aforesaid But that the same be likewise published and made knowne in all Shires of this Kingdome And to that end the Iustices of Assize are required by this honorable Court to cause this decree to bee solemnly read and published 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 opinion of this honorable Court in this case and in what measure his Maiesty and this honorable Court purposeth to punish such as shall fall into the like contempt and offences hereafter Lastly this honorable Court much approuing that which the right honorable Sir Edward Coke knight Lord Chiefe Iustice of England did now deliuer touching the law in this case of Duells hath enioyned 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