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
seruice were able to continew the renowne which this Kingdome hath obtained in all ages of being esteemed victorious Secondly his Maiesties said Atturney generall did discourse touching the causes and remedies of this mischefe 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 bewitching Duells for that it is no better then a kind of sorcery which enchanteth the spirits of young men which beare great minds with a shew of honor in that which is no honor indeed beeing against religion law morall vertue and against the presidents and examples of the best times and valiantest 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 Duells by the course that is held by noble-men and gentle-men in compounding of quarrells who vse to stand too punctually vppon conceipts of satisfactions and distinctions what is before hand and what behind hand which doe but feed 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 quarell but that it was weakenesse to sette a mans life at so meane a rate as to bestowe it vppon trifling occasions which ought to bee rather offered vp and sacrificed to honourable 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 presumption in priuate men of what-soeuer degree of righting their owne wrongs and this to doe at once For that then euery perticuler man would think himselfe acquitted in his reputation when that he shal see that the State takes his honor into their hands and standeth betweene him and any Interest or preiudice which he might receiue 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 preparation which did in any wise tend to the Duells as this of Challenges and the like and so to preuent the Capitall punishment and to vexe the roote in the branches then to suffer them to run on to the execution and then to punish them Capitally after the maner of France where of late times Gentlemen of great quality that had killed others in Duell were carried to the Gibbet with their woundes bleeding least a naturall death should keepe them from the example of Iustice. Thirdly his Maiesties said Atturney generall did by many reasons which hee brought and alledged free the Law of England from certaine vaine and childish exceptions which are taken by these Duellists The one because the Law makes noe difference in punishment betweene an insidious and foule murther and the killing of a man vppon Challenge and faire tearmes as they call it Th' other for that the Law hath not prouided sufficient punishment and reparation for contumelie 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 betweene foule and fayre and this grounding of mortall quarrells vpon vnciuill and reproachfull words or the like disgraces was neuer authorised by any law or ancient examples 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 seuerity Fourthly his Maiesties said Attourney Generall did prooue vnto the Court by rules of law and presidents that this Court hath capacity to punish sending and accepting of Challenges though they were neuer acted nor executed taking for a ground infallible that wheresoeuer an offence is capitall or matter of fellony if it be acted and performed there the conspiracy combination or practise tending to the same offence is punishable as a high misdemeanor although they neuer were performed And therefore that practise to impoyson 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 suborning and preparing of witnesses though they neuer were deposed or deposed nothing materiall was censured in this Court whereupon hee concluded that forasmuch as euery 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 betwene Wharton plantife and Elerker and Acklam defendants Acklam beeing a follower of Elerker had carried a challenge vnto Wharton and although it were by word of mouth and not by writing yet it was seuerely sensured by the Court the Decree hauing wordes that such Chalenges doe tend to the subuersion of gouernment 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 seuerall Articles his purpose and resolution in what cases hee did intend to prosecute offences of that nature in this Court That is to say That if any man shall appoynt the field although the fight bee not acted or performed 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 depart the Realme with intention and agreement to performe the fight beyond the seas If any man shall reuiue a quarrell by any scandalous bruites or writings cōtrary to a former Proclamation published by his Maiesty in that behalfe that in all these cases his Maiesties Atturney generall in discharge of his duety by the fauour and assistance of his Maiesty and the Court would bring the offenders of what state or degree soeuer to the iustice of this Court leauing the Lords Cōmissioners Marshall to the more exact remedies adding further that hee heard there were certaine Councell learned of Duells that tell yong men when they are before hand and when they are otherwise and did incense and incite them to the Duell and made an art of it who likewise should not
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
So as I see no difference betweene an insidious murther and a brauing or presumtuous murther but the difference betweene Cain and Lamed As for examples in Ciuill states all memory doth consent that Grecia and Rome were the most valiant and generous Nations of the world and that which is more to bee noted they were free estates and not vnder a Monarchy whereby a man would thinke it a great deale the more reason that perticuler 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 vertue in it Nay as he saith â—as est et ab hoste doceri it is memorable that is reported by a Councellor and Ambassador of the Emperors touching the censure of the Turkes of these Duells 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 reprehension was in these words How durst you vndertake to fight one with the other are there not Christians enough 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 Barbarous hath euer despised this wherein now men glory It is true my Lords that I find Combats of two natures authorised how iustly I will not dispute as to the later of them The one when vpon the approches of armies in the face one of the other perticuler persons haue made challenges for triall of valors in the field vpon the publike quarrell This the Romanes called pugna per-prouocationem And this was neuer but either betweene the Generalls themselues who were absolute or betweene perticulers by license of the generalls neuer 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 victory besides other infinite like examples worthy and laudable some times by singles some-times by numbers The second Combate is a iudiciall tryall of right where the right is obscure introduced by the Gothes and the Northerne Nation but more anciently entertained in Spaine and this yet remaines in some cases as a Diuine lotte of battayle though controuerted by Diuines touching the lawfulnes of it So that a wise writer saith Talitér pugnantes videntur tentare Deum quia hoc volunt vt Deus ostendat et faciat miraculum vt iustam causam habens victor efficiatur quod saepé contrá accidit But howsoeuer it bee this kind of fight taketh his warrant from law Nay the French themselues whence this folly seemeth chiefely to haue flowne neuer had it but onely in practise and tolleration 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 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 nothing 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 receiue like answere It would haue beene thought a madnes amongst the ancient law-giuers to haue set a punishment vppon the lye giuen which in effect is but a word of deniall a negatiue of anothers saying Any law-giuer if hee had beene asked the question 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 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 deepe is taxed by the iudgment of all wise writers 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 contumely whereof the lye was esteemed none it is not credible but that the Orations themselues are extant what extreame and exquisite reproaches were tossed vp and downe in the Senate of Rome and the places of assembly and the like in Grecia and yet no man tooke himselfe 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 Iniury to the person slander battery mayme and death And if there be extraordinary 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 apprehension 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 Consaluo the great and famous commaunder that was wont to say A Gentlemans honor should bee De telâ 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 demonstration of the wisdome and iustice 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 combination or practise tending to that offence is punishable in this Court as a high misdemenor So practise to impoison though it tooke no effect way-laying to murther though it tooke no effect and the like haue beene adiudged haynous misdemeanors punishable in this Court Nay inceptions and preparations in inferior crimes that are not capitall as suborning and preparing of witnesses that were neuer deposed or deposed nothing materiall haue likewise beene censured in this Court as appeareth by the decree in Garnons case Why then the Maior proposition being such the Minor cannot bee denied for euery appoyntment of the field is but