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A68036 Anti-duello. The anatomie of duells, with the symptomes thereof A treatise wherein is learnedly handled, whether a Christian magistrate may lawfully grant a duell, for to end a difference which consisteth in fact. Also, the maner and forme of combats granted, with the seuerall orders obserued in the proceeding thereof, with the list of such duels, as haue beene performed before the Kings of England. Truly and compendiously collected and set forth by Mr. Iohn Despagne, for the good of soueraigne and subiect. Published by his Maiesties command. Espagne, Jean d', 1591-1659.; Delamore, Andrew, attributed name. 1632 (1632) STC 10530; ESTC S114510 24,502 78

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and to haue giuen authority to the hand that perpetrated the murder 6. Section Nay I say more that if two criminall persons duly attainted and conuicted bee condemned to death the Magistrate cannot in good Conscience assigne a Duell that they may slay each other for that were to make them executors and homicides of themselues but in a Duell whereof wee treat it is farre worse for heere the innocent shall bee the butcher of the nocent or which is more horrid heere the guilty shall put to death the innocent or which fals out there they are both in perill to bee butchers of each other 7. Section To say that in a Duell we await what successe God will send is a friuolous excuse ill proceedings haue sometimes good successe but that is by accident Wee are not bound to Pilate for hauing condemned Iesus Christ hoping that God will pardon our proceedings And more who hath told vs that God will adiudge as we desire to wit to the aduantage of the innocent Thinke wee that God is bound to conforme himselfe to our intentions and to execute our sentence Or if it be only to see what hee will doe therein is not this impudently to tempt him and to make an encrochment vpon his hidden iudgements 8. Section But it is yet more cruell To what danger are their two soules exposed If one of the two be slaine in the field what shall become of that soule which departs out of this World also swolne with vengeance all set on fire with deadly rancour fretting in his owne gall and thirsting after the bloud of his neighbour Is it likely to bee receiued into the bosome of the Patriarks Why then doe wee hazard so swiftly the saluation of a soule which the Sonne of God bought so dearely and which cannot bee bought againe but at the price of so many teares which he hath shed with great cries and of so much blood hee hath shed to wash it Thinke we not that he will demand it at our hands 9. Section Let vs oppose to this barbarous law the stipulations of Christian Diuines who call this Duell an inuention of him that hath beene a murderer from the beginning who when in effect there were but two brethren in the world instigated the one to kill the other Let vs oppose against it the Canons Law of the Church which haue thundred forth Anathema's and Excommunications against these bloody homicides and which haue prosecuted their very ashes denying them Christian buriall and condemned their memory as abominable and worthy to be execrated 10. Section Finally let vs not oppose the Lawes of God which haue vouchsafed to descend to actions of lesse consequence These holy Laws forbid to speake wrong of a deafe man to lead the blind out of the way to mouzell the Oxe that treadeth out the corne and many other ordinances of like nature But how comes it that we find not any rule in a matter so important as is the Duell Iudiciall proceedings are there well prescribed at large and in diuers places and vpon what proofes Iudges ought to found their iudgements The same in Fact of accusation and touching Delators The verball deposition of two or three witnesses specially in a matter of life and death Deut. Chap. 17. vers 6. The Oath which the Holy Ghost affirmes to bee an end of Controuerfies Hebr. Chap. 6. vers 16. And an Oath is ordained in case of goods deposited Exodus Chap. 22. vers 8. Writings and Seales in matters Ciuill Ierem. Chap. 21. The confession of the guilty Iosua Chap. 7. ver 19. Presumptuous and strong coniectures as when Salomon adiudged the Infant to her that was more willing that another woman should enioy him all then to suffer him to bee cut into halfes But concerning proofe or decision by Battaile our Sauiour hath not aduised thereof so that he hath made no rules concerning Barriers the equality of the Armes the calling to the Combatants the going downe of the sun the silence of the Spectators and other circumstances In a word this fighting reduced into an art is none of his inuention Also amongst all the Great courages which the Holy Story commends to vs and amongst them which often had many particular quarrels to fight wee cannot finde the practise of this Duell Dauid had an enemy in the Court of Saul to wit Doeg the Edomite who forbore not to accuse him before his Prince breaking out defiance and outrage in his hearing But Dauid did neuer demand the combat to right his innocence and to make this impostor swallow his lye for as concerning what he did against the Giant wee haue seene that that action was of another nature and from this we may conclude that the Duell is a crime for whatsoeuer we find vnwarranted by precept or example in the Scripture is without Faith now whatsoeuer is done without Faith is a sin 11. Section Let vs adde to this that when the truth of a Fact cannot be manifested by lawfull meanes it is a tempting of God to bee obstinately bent by firie force to know that which he would haue hid from vs but it is a bloody boldnesse to seeke for the truth in the blood and in the heart of a man like those wretched soules that sacrifice humane Creatures to know by their entrals and shall often get nothing but resentment repentance vpon the whole matter if it chance the fact be manifested afterward when the mischiefe is past repaire as hath beene seene in the famous example of two men one of which charged the other to haue committed theft they fought in single combat the partie accused was slaine some short time after the theft was found in the hands of a third partie that was guilty thereof The Iudges cannot now raise againe the poore innocent but must suffer the sting of Conscience all their life long 12. Section And lastly let vs see if a Duell be to any purpose for the determining of a difference what inconuenience can ensue vpon a difference vndecided It may be the two parties may bee fighting continually Is it then fit to make them kill one another to day to the end they may not doe it at another time or is it better they should be slaine with ceremony to the end they may dye by priuiledge The remedy is worse then the mischiefe and it is worth laughing at were it not an offence to God If this way of a Duell bee lawfull betweene two persons why shall it not be vsed betweene two families vpon like occasion and euermore the most barbarous neuer liked that Magistrates should permit a Combat between two kindreds or two families the consequent would extend to the whole cōmonwealth and lastly one part of the Estate would destroy the other which would proue the Forerunner of desolation In a word this course would extirpate all Seates of Iustice and ouerthrow all order and politie What then is the duty of Iudges in such like occasions