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A11870 The duello or single combat from antiquitie deriued into this kingdome of England, with seuerall kindes, and ceremonious formes thereof from good authority described. Selden, John, 1584-1654. 1610 (1610) STC 22171; ESTC S117105 31,538 62

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empesche So much for the generall forme of the obtayning cleere proceeding and performing of the Combat by the law of armes Priuate wronges determined by the Duell and they eyther touching Armes and Gentry or Right of Land-inheritance Cap. 12. OVr diuision hath his other part of trials of priuate rights and interests which are either touching Gentry and bearing of coat-armour such like or concerning right of demesnes inheritance The first of these are vpon controuersies of such nature as were betweene the Lord Grey of Ruthen and Sir Edward Hastings vnder Hen. the Mill de pol. nob pag. 153. third for the coate of the family of the Hastings betweene the Lords Louel and Morley for the bearing of the Burnells Richard Scroope and Robert Grauenor vnder Richard the second Examples of such titles to ensignes of Nobility tried by proofe on body are that of Sir Iohn Chandos an Bosewell in lib. heraldic sol 79 English Knight and the Lord del Cleremount a French-man for bearing the image of our Lady with her child standing in the Sunne which by righte of armes after the battell of Poitiers is reported to bee wonne by the English man-hood and that of Hugh Vaughan Gentleman-Vsher to Henry the seauenth and Sir Iames Parker slaine at VIII Hen VII Stouaeus pag. 795. the first encounter in their combat at Richmond before the King As these causes and the like which concerne the differences arising twixt Gentlemen for their bearing are determinable in the court of Chiualry so the Duel on them waged is before the same iudges in such sort as is before shewed with respectiue sentence to bee managed and performed The respect which antiquity in this Kingdome gaue to the trial of right of enheritance by bodily opposition may be gathered from that old Tenure by which the manner of Scriuelby in Lincolnshire was long since and for ought I know is yet holden viz. by graund serieanty that at the inauguration of Englands Kings the Lord of this mannor for the time being or some other in his name if Inquis 23. Ed. 3. Camden in Coritanis in Cornauijs pag. 406. 438. himselfe be vnable Veniet benè armatus pro guerrâ super vno bono dextrario in presentia D. Regis die Coronationis suae proclamari faciet●si aliquis dicere voluerit quod dictus D. R. non habet ius ad regnūsuum et coronam suam promptus erit paratus ad defendendum ius Regis regni sui dignitatis Coronae suae per Corpus suum versus ipsum alios quoscunque which about Edward the third his time was a seruice Anni 1. Rich. 2 in rot pat edit in Cromptono de iurisdictione Cur. fol. 85. of the Freuils but at Richard the second his coronation vpon claime made to the high Steward and title of discent by marriage shewed was allowed to the Dimocks which now hold it This institution offering at least for fashion to military iudgment the defence of the supreme right to the English Diadem hath beene in more earnest obserued in debates of priuate interests the ancient custome of England alwaies allowing that as well for possession of enheritance in the actions which the Lawiers call Droit p●tent droit d'auouson Quo iure Rationabilibus diuisis and such like which aime at the meere right of the thing demanded as for defence of life or honor 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 liberty should H●siod in 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 bee giuen to the defendant of prouocation from Iupiter and Mercury prouided he omit the sharp to the God of armes The order whereof and perticuler performance we next enquire after Combats vpon right of enheritance in land-possessions how granted prepared and determined with iudgment on them Chap. 13. THe antientest Combat offered in such ciuill causes that I haue read of was in Richard Ceur de Lions time to one William Basset vpon demand by one Emme de P. of a Knights fee in Corfeton in Mich. 6. Rich. 1. rot 3. ap west Wiltshire where Willielmus dicit quod sunt de vno stipite ideo non debet inde probari Where note that the demaundant in her Count after disclosing her right kept that order which you haue in Glanuill hoc prompta sum probare per hunc hominem Glanvil lib. 2. cap. 3. meum liberū I. S. si quid de eo male contigerit per illū vel per illū tertium quot voluerit saith he VVest 1. cap. 40. ita poterit nominare sed vnus tantū vadtabit duellū qui hoc vidit vel audiuit which was by act of parlament afterwards altered vel per alia veiba sic hoc paratus sum probare per hunc liberum hominem meū I. S. cui pater suus iniunxit in extremis agens in fide qua filius tenetur patri quod si aliquando loquelā de terra illa audiret hoc diracionaret sicut id quod pater suus vidit audiuit Thus it seemes in those dayes it was the course for the demandant to offer his proofe in his Count at the Barre by the body of his free-man but so that it rested alwaies in election of the tenant so the Lawiers call the defendant in such case to ioyne issue vpon the offer or cast all vpon the Kings graund assise as the same author more largely declares But the forme since those times and that most frequent in the Law●annalls hath beene to omitt the offer of the battell in the Count in lieu whereof a generall clause of tendering suit and proofe is the common inserted conclusion herevpon the Tenant with formall defence of his right premitted answers and this right he is ready to prooue by the body either of himselfe or his free-man there present with such ensuing words as after Glanduills description the demaundant concluded his Count with If exception hinder not the demandant replyes with allowance of emparlance to prepare his champion recounting his first declared right that hee is ready to prooue the same by his owne or the body of his free-man there present with particular names and formality of pleading pursued Vpon demaund by the Court each of the Champions deliuer in their gloue which they before hold in their right hands as they are led by the Parties serieants as tokens of mutuall challenge Annal. Stouaei pag. 1133. yet it is reported that in Paramours case vnder the late Queene Elizabeth the champion of Haec omnia colligas licet ex annal iuris Anglic. 4. Ed. 3. fol. 41. 29. Ed. 3. fol. 12. 30. Ed. 3. fol. 20. 1. Hen. 6. fol. 6. 13. Eliz. Dy fol. 301. ex annalibus Iohannis Stouaei pag. ●133 the defendant only threw downe his gloue which his aduersary in acceptance of the challenge tooke vp and brought before him into the lists The Court further demaunds of the demaundants champion Will you vpon