it yet not so perfect as new It were audacious to examine it much more to affirme any other in all numbers absolute Onely thus much I see not why two or three on a side are not by power of a like continued addition as neerely equall to Xerxes Myriads as a million the least of numbers being Euclidis definitio numeri 7. Elem. def 2. as well contained vnder that 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as the greatest But in these legall matters toucht with such or other logique niceties the law thus excuses Omnis definitio in iure ciuili periculosa est F. de reg iur l. 202. parum est enim vt non subuerti posset Those two parts genus differeÌ„tia specifica caÌ„not be alwaies and seldome are according to Aristotelique learning in definitions of law subiects To conclude this accept the names notation as your phantasie perswades or true signification as your iudgment directs although I confesse you may possibly finde mee erring in one which if you correct you may chaunce as soone to erre as another but to your correction with respect I submit me Of extraiudiciall Duells That for contracting the aduenture of a greater warre into a lesse number it hath beene by the Ancients vsed and by the iudicious without controuersie allowed Chap. 2. TO diminish imminent daunger of a greater blood-shed Antiquity oftimes made choise of the Duello most commonly as we describe it twixt two combatants although some-times into a greater number yet rarely hath this contraction beene made In the Troian warre Homer testifies of Diomedes and Aeneas Paris and Menelaus Iliad y. 〈◊〉 〈◊〉 Hector and Aiax as assaying by single combat to decide the bloody controuersies of two the most famous people of the Gentiles Hillus leader of the Athenian and Echenus of the Arcadian forces by personall conflict striue in Herodotus to transact In Calliope their controuersie of priority in the army as also to determine the right of the Herculean stocke in their fathers possessions The Romans wageing war with the Albans referred all to the Dionys. Halicar li. 3. antiq Rom. Liu. lib. 1. successe of the Curiatii and Horatii who determined it by victory atchieued by the Horatii Of like nature the hidden secret of Gods particuler 〈◊〉 Reg. cap. 17. prouidence exempted was that of litle Dauid and great Goliah in holy writ reported as also of the British Arthur and Flollo tribune of the Emperour Leo in Gaule after Geffrey of Monmouth his relation Galfred Monumeth lib 7 cap. 3. Nor different was the offer of Lewes the first Christian King of the Frankes to Alaricus Prince of the Westgothes nobilissimo pari fortunam as Aemilius P. Aâ—milius lib. 1. in Clodoueo writes vtriusque gentis decretum irâ— And in the latter memory of our auncestors a generall sedition twixt the French and Italian conioyned Guicciard lib. 〈◊〉 hist. Ital. armies was epitomized into a select number as Guicciardine reports of thirteen soldiers of each nation George Castriot alias Seanderbeg ouercame Hist. Scanderbeg lib. 5. Feribassa in like fight Of these and like examples in forrein stories is frequent mentioÌ„ nor in the English are they wanting Danish irruptions aâ—d the bad aspects of Mars hauing drencht the common mother earth with her sonnes blood streames vnder the raigne of Edmund a Saxon Henric. Huntingd lib. 6. hist. edit Germ. fol. 36â— Camdâ—n in Dobunis Monarch misso in compendium so worthy Camden expresseth it bello vtriusque gentis fata Edmundo Anglorum Canuto Danorum regibus commissa fuerunt qui singulari certamine de summâ imperij in hâc insulâ that is the Eight in Glostershire depugnarunt Agreeing herevnto was that one and last condition of the three which the Duke of Guil. Malmes lib 3. de gestis reg Angâ—iae â—ol 56. Normandy before his conquest offered to King Harold vt scilicet spectante exercitu gladio rem ventilarent So was it offered betweene Iohn of England and Lewes of France that by a Annal. Hibern â—uperrime edit sol 797 single Champion on both parts their controuerted right to certaine Forts should be brought to decision Neither did Richard of that name the Rot. Parlam 7. Rich 2. second hence degenerate in challenging the French Charles the sixt vpon that royall quarrell of best title to the Fleurs de lis The iustice of Combats in this kinde so the whole warres bee Fris. de rep lib. 1. c 26. Ayala lib. 〈◊〉 cap. 3. Bodin de reb cap. 4. lib 7. Alâ—er Gentil de iure belli lib. 1 c 3. iust is approued by iudicious writers Frisius Ayala Gentilis Bodin and others Noninterest enim saith Bodin quo numero aduerâ—us hostes decernatur learned Alciat making no doubt but that Princes of whose kingdome-controuersies no earthly Magistrate hath iurisdiction may vpon force of their priuate credit with Bellona discusse what-soeuer Alciat de sing certam lib. cap. 3. their publique wrongs Cum enim saith he bellum non nisi maximâ calamitate humani generis inuehatur quid iustius excogitari potest quam vt tantâ noxâ de medio sublatâ hi potissimum soli armis decernant ad quos ea res pertinet victoremque res sequatur Indictum istud de Siciliae regno duellum pleniùs refert in eo notatu dignissima Paris de Puteo lib. 3. cap. 2. where hee vouches the appointed lists at Bourdeaux twixt Charles of Aniou and Peter of Arragon for triall of right to the Crowne of Sicily which was allowed by Pope Martin and the whole colledge of Cardinals where-vnto hee addes a second of two brethren of Hungary Haec est necessitas Bâ—ld 5 consil 49â— quae bellum iustificat saith a great Ciuilian cum ad bellum extremo loco confugitur Antiquity hath allowed it Reason confirmed it therefore so I leaue it For proofe of Manhood also in diuers formes and vpon seueral occasions vse of it is found both in the monuments of inmost Antiquity as also in the later ages and alwaies for this purpose as dedicated to HONOR and by the Princes authority Cap. 3 TO omit those seruile Gladiatores of Rome in Dio lib. 54. C. de glad toll l vnicâ Cruenta spectacula in otio ciuili â—t domestica quiete non placent quapropter omnino gladiatores esse prohibemus vid. Othon Frisingen lib. 4. cap 3. De his siquideÌ„ plura velis adi Natalem Comitem lib. 5. Mytholog cap. 1 seq whose saleable blood the Amphitheaters saÌ„dy floore so oft washed it selfe as Lady mony requested vntill Augustus restrained this publike spectacle to ' twise onely in a yeare and Constantine vtterly abrogated the vse of them The old Grecians had their Olympian games instituted by Hercules celebrated euery forth yeare their Pythian from Apollo in which the Gods them-selues are said to haue iudged it honor to haue receiued the chaplet of Baies
such prouocation without speciall leaue from the Princes person his Constable and Marshall or Lords lieutenants of the Prouinces is forbidden vnder paine to the offendor of beeing depriued from euer being able to make his part good by armes with any man as likewise from obtaining any satisfaction or amends for whatsoeuer iniury he shall pretend to haue receiued For our owne Countrie let this one example bee obserued Sir Nicholas de Segraue a Baron in Edward the firsts time challenged one Sir Iohn de Crumbwell and because the Kings prohibition restrained the combat heere in England dared him into France therein as the Record mentioneth subiecting as much as in him laye the Realme of England to the Realme of France Segraue was herevpon staied in his passage at Douer committed to the Castle and afterward in the Kings-bench confessed his fault and submitted himselfe to the King de alto basso Where-vpon Placit de Term. Pasch. 33. Ed. 1. thus speakes the Iudgement super hoc D. R. volens habere auisamentum Comitum Baronum Magnatum aliorum de consilio suo iniunxit ijsdem in homagio fidelitate ligentia quibus ei tenentur quod ipsi fideliter considerent qualis paena pro tali facto fuerit infligenda qui omnes habito super hoc consilio dicunt quod huiusmodi factum meretur poenam amissionis vitae What they thus adiudged vpon his desert was if I mistake not grounded more on their owne exasperated conceit then any English custome How this Extraiudiciall Combat is lawfull or contrary I meane by the law of armes the Imperialls although the diuine law and * christianity Lactant. lib. de ira dei teach otherwise thus I read Licitè proceditur si iniuriâ lacessitus in eiusmodi sit territorio vbi decus et honorem suum ope iudiciali non possit tueri vt si copia Iudicis non fuerit Illicitè si iudicis iniuriantis Arg. l. 9. ff de manumiss vindict copiam habere possit After diuers glosses and commenters vpon seuerall lawes of the Pandects and Code sith honor is not lesse nay more then life to bee respected my Triumvirate of writers of this subiect Alciat and the very late Bocer and Alciat de sing cert cap. 3. Bocer lib. 2. cap. 8. Beuth. conclus 76. Beuther all great Lawyers expresly affirme as much in constant conclusiō which shall conclude also these tripartite extraiudiciall formes the fourth for defence of possessions from iniurie and rapine failing in sufficient sollemnity for desert of bearing a part in this diuision First Authors of the Iudiciall Duell where admitted The Church of Romes inhibition against it Cap. 5. NExt follow the Iudiciall sort which are by some legall or ordinary proceeding managed and are part of the number of the auncient Trialls which were either Canonicae or Vulgares The Canonicae were such as relyed vpon Church-doctrine and religion as especially Oath and receiuing the Eucharist both which in England among the Saxons were in vre The Vulgares called Leges Canuti can 5. exploratoriae purgationes or probae were the ancient Ordells thus deuided Fiery Watry of Camp-fight which is the Duello The two first omitted as also the tryall of Witches by casting them bound into the water or valuing their waight neuer aboue a certaine Poize and such like the last onely is the present subiect In those times which the Philologers call Mythique there is among Poets some-what not altogether vnlike this kinde of tryall of doubtfull right if you will admit that there is any preheminent right among equally respected wooers Hee that could shoote best in Vlysses bow was for delay by Penelope her selfe iudged as the worthiest of Penelope Oenomaus his proclamation Lucian in Charidemo of his chariot-courses to make triall who should enioy Hippodamia which Pelops through perfidious Myrtilus at length won sauours somthing of respect to Bellona's iudgement for although in the swiftnesse of their coursers the victory consisted yet seeing bello armantur equi bellumque armenta minantur and great Achilles Virgil. Aeneid had his education vnder a Centaure this is a part as well of Mars his discipline as close handy strokes In the time historique when the great Iusting at Carthage in Spaine was appointed by Scipio in houor of his Father and Vncle two noble Spaniards Corbis and Orsua Cozen-germans striuing for the title of superiority in a citty there called Ibis non Liu. Ab 〈◊〉 C. lib. 28. alium Deorum saith my author hominumuè quam Martem se iudicem habituros esse professi sunt although Scipio laboured much for quiet transaction of the controuersie Both hauing entered the lists maior saith Liuy vsu armorum astu facile stolidas vires minoris superauit But it were too Arcadian-like to fetch hence or out of these times the infancy or beginnings of the Duello-triall by course iudiciall The Northerne inhabitance as before is noted haue especially of old time made vse of this forme of searching out the hidden truth The Russians Hungarians Almans Normās English others But the most cōmon iudgment of writers and cleerly the truest deriues the fountaine thereof from the Ancient Lumbards called by reason of their long Beards Longobardi a people that out of those Northerne parts of Europe which vnder the generall name of Scandia containe Norway Swethland Danemarke and other regions by North high Germanie ouer-ran some of the chiefe countries of this fourth part of the world and indeed at the first when they sought those new habitations tried their title of safe passage through some parts of Germany by single fight twixt one of Paul VVarnfred de gest Longobard lib. 1. cap. 12. their owne Campe and as Paule warnfred reports another of their enemies They were a nation like enough to bee Fathers of such a child Tacit. de morib Germanorum which is alone testified in that of Tacitus writing of the largenesse of some of their neighbours states Contra Longobardos paucitas nobilitat so neat Lipsius reads it quod plurimis ac valentissimis nationibus cincti non per obsequium sed praeliis periclitando tuti sunt Nay the same author hath in expresse termes that which directly tastes of this trying Monomachy among some of the adioyning people of that climate Eius gentis saith he Tacitus ibid. cum qua bellum est captiuum quoquo modo interceptum cum electo popularium suorum patriis quenque armis committunt victoria huius vel illius pro praeiudicio accipitur But for the matter-selfe with-out Carol. sigon hist. de regno Italiae lib. 2. longer circumstances Longobardorum so saies my Italian historiographer antiqua est consuetudo vt crimina vel maxima singulari praelio purgarentur quae poste à per leges translata per multa tempora obseruata est In so much that by speciall constitution of Fronto alias Frotho King of the Danes
consuetudines praelij Constabularius vendicaret equum si limites fuisset ingressus sed nil sibi valet astutia sua nam equus iuxta list as discurrens aliquoties totum caput et pectus iniecit vltra limites Ob quam causam Constabularius Thomas de Woodstock equum vendicauit iurans se velle caput eius habere viz. quantum inter listas de equo visum fuit vnde adiudicatus est ei equus The Esquire entring the lists on foote the constable Marshall produce a certaine Indenture made before them by consent of the parties conteining the articles of the accusation which were there publiquely read Catrington began to offer exception at some of them thereby thinking to haue some-what extenuated the blottes laide on him But the Duke of Lancaster seeing him in delayes with an oath openly menaced him that vnlesse according to the Duello-lawes hee would admitte all in the indenture which was drawne by his assent as free from beeing taxt for insufficiency of forme hee should bee presently drawne and hanged as a traitor Wherevpon the Squire ceased from his exceptions and entended onely the Combat Sir Iohn Ansley provt moris est saith Walsingham and after him this Catrington tooke oath of the truth of his cause that hee was free from all vse of Art Magique that he did not carry with him any hearbe stone or other kinde of experiment of Witchcraâ—t as hoping thereby for victory The Combat it selfe followes betweene them First Launces then Swords afterwards Fauchions are their weapons The Squire had still the worst euen vntill Ansley although with some hazard and doubt as you may see in the Author got the adiudged victory Some fiue yeares after vpon iudgment of the Annal. Stouaei fol. 477. Parliament then holden a Combat was fought betweene one Mortileto de Vilenos a Nauarrois appellant and an English Esquire called Iohn Walsh defendant the accusation was of treason but the truth was that the chiefe motiue of Mortileto's quarrell as him-selfe afterwards ouercome confessed was a former discouered close combat betweene his wife and the Squire But long since Mars him-selfe was in that fault Ob quam causam saiâ—h Walsingham idem Nauarrus VValsingham 7. Rich. 2. fest Martini fol. 311. Edit Camdeni regali iudicio qui ad spectaculum duelli cum principibus regni sui consederat tractus suspensus est Although the Queene and diuerse others very earnestly entreated his pardon The appointed lists for the determination of that great quarrell twixt Henry Duke of Hereford Jdâ—m ann 23 Rich. 2. fol. 356 and Thomas Mowbray of Norfolke vpon imputation of some reprochfull termes vsed against the King by Mowbray is because of the great consequent of Crowne-conuersion thence following in euery mans mouth famous Yet in respect of the particulers thereof well as all things else compiled by the author of the life and raigne of 1. Heyward in vita Henrici quarti pag. 45. Henry the fourth it deserues there the reading whither I referre you Iohn Vpton vnder Henry the sixt appealed Iohn 8. Hen. 6. Annal Stouaei fol. 609. Downe that hee with his complices had imagined the Kings death on the day of Coronation Richard Duke of Yorke vpon absence of Iohn Duke of Bedford Regent of France for this purpose constituted high Constable of England The battell twixt them was fought in Smithfield where when they had long fought the King saith Iohn Stow tooke vp the matter and forgaue both parties Iohn Dauid falsely appealed his maister William Idem pag. 635 ann 25. Hen. 6 Catur an armorer in Fleete-streete of Treason the battell waged the place appointed in Smithfield Catur was so merry with his friends before the Combat that when hee had most cause of circumspect obseruation an Icarian shadow so darkned his eye-sight and weakned his forces that hee was vnluckely there by his most offending seruant ouer-come and slaine Out of these examples may bee gathered some particulers of our Duello-ceremonies not to bee neglected But because a difference appeares twixt the iurisdiction here discouered and that in the former examples collected from our lawannalls and old writers separate disquisition shall endeuour reconciliation Who are the Iudges and haue Iurisdiction of the Combat Chap. 10. BRacton and Britton in their inserted treatises of the Combat speake onely of the Kings Iustices which you must in criminall causes vnderstand of the Kings Bench with them agrees Glanuill in these words Ex quo fuerit duellum vadiatum Glanuil lib. 14 cap. 1. non alio modo nisi de licentia domini Regis vel eius IusticiarioruÌ„ de caetero possunt sibi ad invicem reconciliari speaking expresly of an appeale of Treason But in a Terme booke of Henry the sixt two learned Lawyers affirme that the Iudges before M. 37. Hen. 6. fol. 3. â—0 whom the Combat is determinable are the Constable and Marshall of England which are to order it by the law of armes concording are the historical presidents next before recited Yet vpon obseruation of all this seeming contrary testimony the Truth will be thus apparant That when the Appeale is vpon matter disgracefull or dishonorable to nobility or the accusation in such forme of termes place as cannot be sufficient ground of an Appeale by Common-law course as when the matter I speake especially of Criminalls or armory is not emergent within the Realme then if the Combat bee challenged the Naturall Iudges are those two Noble Officers the high Constable and Marshall of England to whome belong from Antiquity a Court called le Court de Chiualry ad lites honorartas as a late writer Mill. de nobilit politic pag. 154. saith discutiendas iusque suum cuique famae vel dignitatis tribuendum For this I haue Iudge Prisots words For calling another false c. No appeale saith hee lyes in our law and by consequence no such defence viz. by proofe on body may bee for such matter belongs to the Constable and Marshall and they shall determine this by the lawe Ciuill Where-vnto Nedham replyes that it is le ley del terre le ley nostre seignior le roy This is infalliby confirmed by the act of 13. Richard the second touching the Constables power Al Constable appertient d'auer conusance des contracts touchants faits d'armes du guerre hors de Realme Et ainsi des choses queux touchent armes ou guerre deins le royalme queux ne poyent estre Stat. 13. Rich. 2. cap. 2. vide insuper stat 1. Hen. 4. cap. 14. 30. Hen. 6. fol. 5. 6. Hen. 8. Kel 171. termines ne discusses per le commen ley oue auters vsages Customes a ycelles mattiers appertenants queux auters Constables Deuant ore ont duement resonablemant vses en leur temps adioustant a icel que chescun pleintife declara pleniment sa matter en son petition auant que soit enuoy pur ascun
all Saxo Grammatic hist. Daniae ib. 5. 10. controuersies tooke this for their touchstone vntill such time as King Poppo a Christian thinking wronged Vulcan to be a better iudge then wrounging Mars by new iuduction of the Fiery Ordell made thereof abrogation After the Gothique Martin del Rio dâ—sq Magi. lib. 4. q. 4. sec. 2 irruptions into the Empire and the Lumbards power and customes enlarged the rest not without the allowance of one of the Pope Iohns of Germany France and Spaine not in Criminall onely but also in Ciuill causes haue admittance of it Bodin de repub lib 4. cap. 7. ex lâ—gibus â—â—â—go bard and howsoeuer Rhotaris a Lumbard King once prohibited it yet he was constrained afterwards to restore it But for the most part the Church of Rome hath impugned it with her authority Pope Nicholas the first forbad the Emperor Lothar to try his wiues suspected chastity by the appointed Caus. 2. quest 5 c. 22. monomachiam Decret tiâ— de vulgari purgatione Concil Trident sess 9. can 19. ps 2. combat of two elected dhampions cum hoc so he wrot hâ—iusmodi sectantes Deum solum modò tentare videantur so did Celestine the third and other Bishops of that Sea last of all thus thunders the councel of Trent Imperator Reges Duces Principes Marchiones Comites quocunque alio nomine Domini temporales qui locum ad Monomachiam in terris suis inter Christianos concesserint eo ipso sint excommunicati ac iurisdictione dominio ciuitatis castri aut loci in quo vel apud quem duellum fieri permise rint quod ab eclesia obtineÌ„t priuati intelligantur si feudalia sint directis Dominis statim acquiraÌ„tur Qui verò pugnam commisserint qui eorum patrini vo cantur excoÌ„municationis omnium bonorum suoruÌ„ proscriptionis perpetuae infamiae paenam incurrant vt homicidae iuxta sacros canones puniri debent si in ipso conflictu decesserint perpetuó careant ecclesiasticâ sepulturâ Illi etiam qui consilium in causa Duelli tam in iure quam facto dederint aut alia quacunque ratione ad id quenquaÌ„ suaserint nec non spectatores excommunicationis ac perpetuo maledictionis vinculo teneantur Non obstante quocunque priuilegio seu praua consuetudine etiam immemorabili To those which were the obseruant sonnes of the Roman Church this and the other decrees extend their inhibitions But the English customes neuer permitted them-selues to be subiected to such Clergy-canons alwaies vnder parliament correction retaining as what-so-euer V. Smith lib 2 de â—â—p Anglorum cap. 7. they haue by long vse or allowance approued so this of the Duell which how it first came into this Kingdome stands next to bee inquired Whence England receiued it if from the Normans Chap. 6. I Thinke it not easy to proue this custome in EnglaÌ„d before the Norman conquest yet it appeares y â— the ancient GermaÌ„s who were the fathers of the English made some vse of it and Verstegan in his Verstegan pag. 64. 300. chapter of the old manner of liuing of the Saxons out of good authority numbers his Kamp-fight whence comes our English names of Kemp and Campion for a Combat-fighter among the foure Ordells which then purged or condemned as mute iudges Ad de herevnto the iudgement of Guil le Rouille Alenconiensis in praefat â le graund Cust. du Normandy William Rouille d' Alenson in his Preface to the old graund Custumier du Normandie making the Norman customes among which the Duell is one to owe their originall to England rather then the English to Normandy His words because they Atqui lector adeas fi de his consulas Rogerum de Houeden in 2. part annalâ—um fol. 346. seq G. insuper CamdenuÌ„ Lambardum in explic verb. nouissi nê quae sunt ab honoratissimo J. C. tissimo V. D. Ed. Coke Eq. aurato priuatorum iudicioruÌ„ praetoâ—â— summo ad terâ—ium lâ—bruÌ„ responsorum edita maxime quae ab iâ—sde e â—eruâ—sio Tilburiensi trâ—â—scrâ—buÌ„â—ur touch the generality of our common lawes shall not be left without a roome here At huiusce Normannicae consuetudinis speaking of the whole Custumary latorem siue â—atorem S. Edwardum Angliae regem testatur vulgaris illa Cronica quae Cronica Cronicorum intitulatur vbi de Gulielmo Bastardo Normannorum Duce alias Anglorum rege loquitur dicens quod cum praedictus S. Edwardus ex se liberos heredes nullos haberet Guilielmum regni heredem instituit qui deuicto mortuo Haroldo regni vsurpatore hac conditione regno liberè potitus est vt scilicet leges prius a praefato Edwardo latas seruaret qui quidem Edwardus leges etiam Normannis dederat etiam cum Normannia diu fuisset enutritus But all this perswadeth not such Antiquity of the English Duell The old Saxon lawes of Alfred Edward Athelstane Edmund Edgar or others of those times are silent of any such matter Nor as I remember haue the Monkish stories of that age any authority for proofe of it Onely in William of Malmesbury relation is made of a combat fought and a champion slaine vpon proofe of Malmesbur de gest reg li 2 cap 12. the by-insimulation-wronged chastity of Gunhilda daughter to Hardknot and wife to Henry the third of Germanie but this was out of the English territory wherefore although the one part was English nothing to our purpose is hence gathered Leg. Guil. Coq apud Lamb. fol. 125. But in the lawes of VVilliam the first it is decreed that if a French-man appeale an Englishman of periury murder theft mans-slaughter or robbery Anglus se defendat per quod melius voluerit aut iudicio ferri * Ferri nimirum igniti cuius formam explicatissime babes in Antiq. Eccles. Brit. in Lamb. expli verb. aut Duello It rests therefore that wee admit that the Normans alias North mans being by their first ofspring from the Norwegian coast where this custome as before is shewed had his breeding were the first authors of it in this their conquered kingdome The diuision of the Duell iudiciall as of iudgements the forme out of the Common law till the lists intred with authority and examples of the Criminall Duell Chap. 7. GEnerally it being thus from the antients brought into England what followes of it also shal be within England chiefely confined As Cicer in orat pro Cecinna the diuision of iudgements is bipartite consisting eyther in punishment of misdeedes committed against the body of the state or determination of controuersies touching onely particular persons which in fewest wordes is expressed by Publike and Priuate Criminall and Ciuill so if the Tryall may be denominated from the iudgement the same distinction may bee admitted in the Duell to bee eyther Criminall or Ciuil Criminall beeing waged for purgation of