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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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them was the more legitimate hee caused the body of their dead father to be vnburied gaue them in their hands bowes and arrowes and adiuged that hee of the three that shot neerest his heart should bee held legitimate Two shot the third said that hee had a great deale rather forgoe his title then to gaine it at such a price The succession was adiudged to the last and if the proceeding were barbarous the iudgement was commendable But these impious courses which the Sunne of Iustice hath chased into Hell ought now thence to bee cald back againe Let vs see then if there rest any other extraordinary way which may hold the place of proofe Wee find that in such cases some haue vsed casting Lots and such as approue of a Duell doe easily allege this reason That the Duell is one kind of Lot and by consequent practicable Indeed thereby occasions wherein the Lot may take place If two brothers haue an inheritance to be diuided betwixt them and after each portion being equaly diuided yet they may try by Lot to see which of the two ought to fall to the one or other In a Senat if a place fall void and many Citizens expect it being of equall capacity to execute the same the clayme 's of these competitors may bee tryed by Lot for auoidance of many mischiefes So did the Romans vse to doe in allotting their Prouinces and still to this present many Common wealths follow that course in disposing Offices and dignities In time of persecution the Ministers of a Church may cast the Lot to know to whom amongst them it shall fall to stay or goe the examples wherewith holy Antiquity doth furnish vs to this purpose haue some thing in them of a high straine then the simple nature of a Lot can well beare as one may see in the diuision of the Land of Canaan and in the inauguration of Saul in whose election it pleased God they should deale by Lot But the matter which is properly in question is this If a man may this way serue his turne to find out the truth of a fact which is vnknowne vnto vs and heere again wee haue examples but they are such which exceed the nature of a Lot In antient times amongst Gods people when it was euident that some crime was committed amongst them the author whereof was not certainly knowne one cast Lots among the Tribes from the Tribes he came to the Families and lastly it fell vpon some one single man so was hee conuicted that had taken things forbidden at the sacke of Iericoh so Ionathan was found out hauing done contrary to the command of the King his father so the Mariners came to the knowledge that Ionas occasioned the tempest If we were assured to find out matters so happily or if God had giuen vs his warrant I could admit of casting lots in this nature but we haue nomore certainty to build vpon but the incertainty of the Lot And yet this makes nothing in fauour of a Duell for the manner of proceeding by Lot is not to send two men to slay one another and generally the Lot toucheth but one but the Duell endangereth both one whereof is innocent We will then now speake of the Duel and to the end that no man may imagine that possest with a preiudicate opinion we condemne it onely in regard of the name which makes it odious we wil accurately waigh all the kinds and differences I well know that wee are not to treate heere of the fights wherein Gladiators Fencers exercise themselues for recreation of spectators Moreouer we handle not that vnheard fury of those who to fulfill their particular reuenge or for some imaginary puntitio of honour haue waded so farre in the effusion of blood and sent so many soules to Hell But the question heere is of a Duell warranted by the Lawes agreed vnto by the Soueraigne adiudged necessary in default of other proofe for the making manifest of some fact in question of consequence to the State and for the decision of a difference of great importance but this is the very thing which we argue to wit if Superiors may in good conscience decree a Duell at their motions for the determination of their difference And that I may anticipate and obuiate many pretenses which might diuert vs from the state of the question I acknowledge that vpon certaine occasions the Duell is disputable and vpon others altogether necessary See some examples When an innocent man opprest by the calumnious accusation of his aduersary is like to be condemned in case he iustifie not himselfe by combat some hold it shall bee lawfull to accept this way there being none other way left him to support his innocence But this proceeding cannot iustifie the Iudges for if they haue found him guilty will the Duell make him innocent and finding nought to conuict him are they not bound to acquit him Why then will they expose him to the hazard of his life whom they are not able to pronounce guilty The Duell whereto a man is constraind by the violence of one that sets vpon him is not of this nature He that is assayled may repell force with force it is a principle in nature and a priuiledge granted by the Laws for the partie assailed is not in case to inuoke the assistance of a Magistrate and the Magistrate is not in place to repell that oppression But what relation or analogy hath this defence with the Magistrates absence rendred necessary and which hee ought to haue forborne if hee had beene in place with a Duell which the Magistrate will authorise either by his presence or by his approbation Nor makes it to the purpose to allege the Duels which haue beene fought betweene Princes which haue determined their quarels by the monomachy of man to man The Crowne of England was sometimes in that sort disputed betweene Edmund Iron-side and Canute the Dane Edward the third offred as much to the King of France the French King to the Emperor Charles the fifth and Henry the Great Father of our most Illustrious Queene made offer to the Duke of Guise his competitor to put a period to their difference by point of speare his person against his six against six or hundred against hundred I will not say that it is lawfull to a Prince so to hazard the head of the Common-wealth and in his person all the body of his Estate but when this way is permitted them it is because Soueraigne Princes haue not any Iudge aboue them who can doe them right so that to obtaine reason from their hands who are eleuated to as high a pitch of dignity as themselues there is not any other way but by armes and these their doings haue an outward shew of charity for a Prince will say that hee likes better to expose his owne person to danger then to see a bloody warre that should swallow vp many thousands of men and giue