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the question would have made Solon's answer: That he had not ordained any punishment for it, because he never imagined the world would have been so fantastical as to take it so highly. The civilians, they dispute whether an action of injury lie for it, and rather resolve the contrary. And Francis the first of France, who first set on and stamped this disgrace so deep, is taxed by the judgment of all wise writers for beginning the vanity of it: for it was he, that when he had himself given the lie and defy to the emperor, to make it current in the world, said in a solemn assembly, "That he was no honest man that would bear the lie:" which was the fountain of this new learning.
As for words of reproach and contumely, whereof the lie was esteemed none, it is not credible, but that the orations themselves are extant, what extreme and exquisite reproaches were tossed up and down in the senate of Rome and the places of assembly, and the like in Graacia, and yet no man took himself fouled by them, but took them but for breath, and the style of an enemy, and either despised them or returned them, but no blood spilt about them.
So of every touch or light blow of the person, they are not in themselves considerable, save that they have got upon them the stamp of a disgrace, which maketh these light things pass for great matter. The law of England, and all laws, hold these degrees of injury to the person, slander, battery, maim, and death; and if there be extraordinary circumstances of despite and contumely, as in case of libels, and bastinadoes, and the like, this court taketh them in hand, and punisheth them exemplarily. But for this apprehension of a disgrace, that a fillip to the person should be a mortal wound to the reputation, it were good that men did hearken unto the saying of Consalvo, the great and famous commander, that was wont to say, a gentleman's honour should be de tela crassiore, of a good strong warp or web, that every little thing should not catch in it; when as now it seems they are but of cobweb lawn, or such light stuff, which certainly is weakness, and not true greatness of mind, but like a sick man's body, that is so tender that it feels every thing. And so much in maintenance and demonstration of the wisdom and justice of the law of the land.
For the capacity of this court, I take this to be a ground infallible: that wheresoever an offence is capital or matter of felony, though it be not acted, there the combination or practice tending to that offence is punishable in this court as a high misdemeanor. So practice to impoison, though it took no effect; waylaying to murder, though it took no effect, and the like; have been adjudged heinous misdemeanors punishable in this court. Nay, inceptions and preparations in inferior crimes, that are not capital, as suborning and preparing of witnesses that were never deposed, or deposed nothing material, have likewise been censured in this court, as appeareth by the decree in Garnon's case.
Why then, the major proposition being such, the minor cannot be denied: for every appointment of the field is but combination and plotting of murder; let them gild it how they list, they shall never have
fairer terms of me in place of justice. Then the conclusion followeth, that it is a case fit for the censure of the court. And of this there be precedents in the very point of challenge.
It was the case of Wharton plaintiff, against Ellekar and Acklam defendants, where Acklam being a follower of Ellekar's was censured for carrying a challenge from Ellekar to Wharton, though the challenge was not put in writing, but delivered only by word of message; and there are words in the decree that such challenges are to the subversion of government.
These things are well known, and therefore I needed not so much to have insisted upon them, but that in this case 1 would be thought not to innovate any thing of my own head, but to follow the former precedents of the court, though I mean to do it more throughly, because the time requires it more.
Therefore now to come to that which concerneth my part; I say that by the favour 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 writing, or any message of challenge.
If any man carry or deliver any writing or message of challenge.
If any man shall accept or return a challenge.
If a man shall accept to be a second in a challenge of either side.
If any man shall depart the realm, with intention and agreement to perform the fight beyond the seas.
If any man shall revive a quarrel by any scandalous bruits or writings, contrary to a former proclamation published by his Majesty in that behalf.
Nay, I hear there be some counsel learned of duels, that tell young men when they are beforehand, and when they are otherwise, and thereby incense and incite them to the duel, and make an art of it; I hope I shall meet with some of them too: and I am sure, my lords, this course of preventing duels, in nipping them in the bud, is fuller of clemency and providence than the suffering them to go on, and hanging men with their wounds bleeding, as they did in France.
To conclude, I have some petitions to make first to your lordship, my lord chancellor, that in case I be advertised of a purpose in any to go beyond the sea to fight, I may have granted his Majesty's writ of Ne exeat regnum to stop him, for this giant bestrideth the sea, and I would take and snare him by the foot 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 business, that a man may be as well fur de ne as feto de se, if he steal out of the realm for a bad purpose; as for the satisfying of the words of the writ, no man will doubt but he doth machinan contra coronam, as the words of the writ be, that seeketh to murder a subject; for that is ever contra coronam el dignitatem. I have also a suit to your lordships all in general, that for justice' sake, and for true honour's sake, honour of religion, law, and the king our master, against this fond and false disguise or puppetry of honour, I may in my prosecution, which, it is like enough, may sometimes stir coals, which I esteem not for my particular, but as it may hinder the good service, 1 may, I say, be countenanced and assisted from your lordships. Lastly, I have a petition to the nobles and gentlemen of England, that they would learn to esteem themselves
at a just price. Nan has qucesilum munus in utus, their blood is not to be spilt like water or a vile thing; therefore that they would rest persuaded there cannot be a form of honour, except it be upon a worthy matter. But for this, ipri viderint, I am resolved. And thus much for the general, now to the present case.
DECREE OF THE STAR-CHAMBER
IN CAMERA STELLATA CORAM CONCILIO. IBIDEM, 2G JANUAR1I, 11 JAC. REGIS.
George Lord Archbishop of Canterbury.
Thouiao Lord Ellesmere, Lord Chancellor of England.
Henry Earl of Northampton, Lord Privy Seal.
Charles Earl of Nottingham, Lord High Admiral of England.
Thomas E. of Suffolk, Lord Chamberlain.
John Lord Bishop of London.
Edward Lord Zouch.
Tins day was heard and debated at large the several matters of informations here exhibited by Sir Francis Bacon, knight, his Majesty's attorneygeneral, the 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 the other against Richard Wright, esquire, for carrying and delivering the said letter and stick unto the party challenged, and for other contemptuous and insolent behaviour used before the justices of the peace in Surrey at their sessions, before whom he was convented. Upon the opening of which cause, his Highness's said attorney-general did first give his reason to the court, why, in a case which he intended should be a leading case for the repressing of so great a mischief in the commonwealth, and concerning an offence which reigneth chiefly amongst persons of honour and quality, he should begin witlt a cause which had passed between so mean persons as the defendants seemed to be ; which he said was done, because he found this cause ready published: and in so growing an evil, he thought good to lose no time; whereunto he added, that it was not amiss sometimes to beat the dog before the lion; saying farther, that he thought it would be some motive fur persons of high birth and countenance to leave it, when they saw it was taken up by base and mechanical fellows j but concluded, that he resolved to proceed without respect of persons for the time to come, and for the present to supply the meanness of this particular case by insisting the longer upon the general point.
William Lord Knolles, Treasurer of the Household.
Sir Julius Coesar, Knight, Chancellor of the Exchequer
Wherein he did first express unto the court at large the greatness and dangerous consequence of this presumptuous offence, which extorted revenge out of the magistrate's hands, and gave boldness to private men to be lawgivers to themselves; the rather because it is an offence that doth justify itself against the law, and plainly gives the law an affront; describing also the miserable effect which itdraweth upon private families, by cutting off young i..en, otherwise of good hope; and chiefly the loss of the king and the commonwealth, by the casting away of much good blood, which, being spent in the field upon occasion of service, were able to continue the renown which this kingdom hath obtained in all ages of being esteemed victorious.
Secondly, his Majesty's said attorney-general did discourse touching the causes and remedies of this mischief that prevailed so in these times; showing the ground thereof to be a fatae and erroneous imagination of honour and credit, according to the term which was given to those duels by a former proclamation of his Majesty's, which called them bewitching duels, for that it was no better than a kind of sorcery, which enchanteth the spirits of young men, which bear great minds, with a show of honour in that which is no honour indeed: being against religion, law, moral virtue, and against the precedents and examples of the best times and valiantest nations of the world; which though they excelled for prowess and military virtue in a public quarrel, yet knew not what these private duels meant; saying farther, that there was too much way and countenance given unto these duels, by the course that is held by noblemen and gentlemen in compounding of quarrels, who use to stand too punctually upon conceits of satisfactions and distinctions, what is beforehand, and what behind-hand, which do but feed the humour: adding likewise, that it was no fortitude to show valour in a quarrel, except there were a just and worthy ground of the quarrel; but that it was weakness to set a man's lifeat so mean a rate as to bestow it upon trifling occasions, which ought to be rather offered up and sacrificed to honourable services, public merits, good causes, and noble adventures. And as concerning the remedies, he concluded, that the only way was, that the state would declare a constant and settled resolution to master and put down this presumption in private men, of whatsoever degree, of righting their own wrongs, and this to do at once; for that then every particular man would think himself acquitted in his reputation, when that he shall see that the state takes his honour into their own hands, and standeth between him and any interest or prejudice, which he might receive in his reputation for obeying: whereunto he added likewise, that the wisest and mildest way to suppress these duels was rather to punish in this court all the acts of preparation, which did in any wise tend to the duels, as this of challenges and the like, and so to prevent the capital punishment, and to vex the root in the branches, than to suffer them to run on to the execution, and then to punish them capitallyafter the manner of France: where of late times gentlemen of great quality that had killed others in duel, were carried to the gibbet with their wounds Weeding, lest a natural death should keep them from the example of justice.
Thirdly, His Majesty's said attorney-general did, by many reasons which he brought and alleged, free the law of England from certain vain and childish exceptions, which are taken by these duellists: the one, because the law makes no difference in punishment between an insidious and foul murder, and the killing a man upon challenge and fair terms, as. they call it. The other, for that the law hath not provided sufficient punishment and reparation for contumely of words, as the He, and the like; wherein his Majesty's said attorney-general did show, by many weighty arguments and examples, that the law of England did consent with the law of God and the law of nations in both those points, and that this distinction in murder between foul and fair, and this grounding of mortal quarrels upon uncivil and reproachful words, or the like disgraces, was never authorized by any law or ancient examples; but it is a late vanity crept in from the practice of the French, who themselves since have been so weary of it, as they have been forced to put it down with all severity.
Fourthly, His Majesty's said attorney-general did prove unto the court by rules of law and precedents, that this court hath capacity to punish sending and accepting of challenges, though they were never acted nor executed; taking for a ground infallible, that wheresoever an offence is capital or matter of felony, if it be acted and performed, there the con
spiracy, combination, or practice tending to the samp offence, is punishable as a high misdemeanor, although they never were performed. And therefore, that practice to impoison, though it took no effect, and the like, have been punished in this court; and cited the precedent in Garnon's case, wherein a crime of a much inferior nature, the suborning and preparing of witnesses, though they never were deposed, or deposed nothing material, was censured in this court: whereupon he concluded, that forasmuch as every appointment of the field is in law but a combination of plotting of a murder, howsoever men might gild it; that therefore it was a case fit for the censure of this court: and therein he vouched a precedent in the very point, that in a case between Wharton plaintiff, and Ellekar and Acklam defendants; Acklam being a follower of Ellekar, had carried a challenge unto Wharton j and although it were by word of mouth, and not by writing, yet it was severely censured by the court; the decree having words that such challenges do tend to the subversion of government. And therefore his Majesty's attorney willed the standers-by to take notice that it was no innovation that he brought in, but a proceeding according to former precedents of the court, although he purposed to follow it more thoroughly than had been done ever heretofore, because the times did more and more require it Lastly, his Majesty's said attorney-general did declare and publish to the court in several articles, his purpose and resolution in what cases he did intend to prosecute offences of that nature in this court; that is to say, that if any man shall appoint the field, although the fight be not acted or performed; if any man shall send any challenge in writing or message of challenge; if any man shall carry or deliver any writing or message of challenge; if any man shall accept or return a challenge; if any man shall accept to be a second in a challenge of either part: if any man shall depart the realm with intention and agreement to perform the fight beyond the seas; if any man shall revive a quarrel by any scandalons bruits or writings contrary to a former proclamation, published by his Majesty in that behalf; that in all these cases his Majesty's attorney-general, ia discharge of his duty, by the favour and assistance of his Majesty and the court, would bring the offenders, of what state or degree soever, to the justice of this court, leaving the lords commissioners martial to the more exact remedies: adding farther, that he heard there were certain counsel learned of duels, that tell young men when they are beforehand, and when they are otherwise, and did incense and incite them to the duel, and made an art of it; who likewise should not be forgotten. And so concluded with two petitions, the one in particular to the lord chancellor, that in case advertisement were given of a purpose in any to go beyond the seas to fight, there might be granted his Majesty's writ of Ne exeat regnum against him; and the other to the lords in general, that he might be assisted and countenanced in this service.
After which opening and declaration of the general cause, his Majesty's said attorney did proceed to set forth the proofs of this particular challenge and offence now in hand, and brought to the judgment and censure of this honourable court; whereupon it appeared to this honourable court by the confession of the said defendant Priest himself, that he having received some wrong and disgrace at the hands of one Hutchest, did thereupon, in revenge thereof, write a letter to the said Hutchest, containing a challenge to fight with him at single rapier, which letter the said Priest did deliver to the said defendant Wright, together with a stick containing the length of the rapier, wherewith the said Priest meant to perform the fight. Whereupon the said Wright did deliver the said letter to the said Hutchest, and did read the same unto him; and after the reading thereof, did also deliver to the said Hutchest the said stick, saying, that the same was the length of the weapon mentioned in the Raid letter. But the said Hutchest, dutifully respecting the preservation of his Majesty's peace, did refuse the said challenge, whereby no farther mischief did ensue thereupon.
This honourable court, and all the honourable presence this day sitting, upon grave and mature deliberation, pondering the quality of these offences, they generally approved the speech and observations of his Majesty's said attorney-general, and highly commended his great care and good service in bringing a cause of this nature to public punishment and example, and in professing a constant purpose to go on in the like course with others: letting him know, that he might expect from the court all concurrence and assistance in so good a work. And thereupon the court did by their several opinions and sentences declare how much it imported the peace and prosperous estate of his Majesty and his kingdom to nip this practice and offence of duels in the head, which now did overspread and grow universal, even among mean persons, and was not only entertained in practice and custom, but was framed into a kind of art and precepts: so that, according to the saying of the Scripture, mi*c/iie/'is imagined like a law. And the court with one consent did declare their opinions: That by the ancient law of the land, all inceptions, preparations, and combinations to execute unlawful acts, though they never be performed, as they be not to be punished capitally, except it be in case of treason, and some other particular cases of statute law; so yet they are punishable as misdemeanors and contempts: and that this court was proper for offences of such nature; especially in this case, where the bravery and insolency of the times are such as the ordinary magistrates and justices that are trusted with the preservation of the peace, are not able to master and repress those offences, which were by the court at large set forth, to be not only against the law of God, to whom, and his substitutes, all revenge belongeth, as part of his prerogative, but also against the oath and duty of every subject unto his Majesty, for that the subject doth swear unto him by the ancient law allegiance of life and member; whereby it is plainly inferred, that the subject hath no disposing power over himself of life and member to be spent or ventured ac
cording to his own passions and fancies, insomuch as the very practice of chivalry in justs and tournays, which are but images of martial actions, appear by ancient precedents not to be lawful without the king's licence obtained. The court also noted, that these private duels or combats were of another nature from the combats which have been allowed by the law, as well of this land as of other nations,' for the trial of rights or appeals. For that those combats receive direction and authority from the law; whereas these contrariwise spring only from the unbridled humours of private men. And as for the pretence of honour, the court much misliking the confusion of degrees which is grown of late, every man assuming unto himself the term and attribute of honour, did utterly reject and condemn the opinion that the private duel, in any person whatsoever, had any grounds of honour; as well because nothing can be honourable that is not lawful, and that it is no magnanimity or greatness of mind, but a swelling and tumour of the mind, where there faileth a right and sound judgment; as also for that it was rather justly to be esteemed a weakness, and a conscience of small value in a man's self, to be dejected so with a word or trifling disgrace, as to think there is no re-cure of it, but by the hazard of life: whereas true honour in persons that know their own worth, is not of any such brittle substance, but of a more strong composition. And finally, the court showing a firm and settled resolution to proceed with all severity against these duels, gave warning to all young noblemen and gentlemen, that they should not expect the like connivance or toleration as formerly have been, but that justice should have a full passage without protection or interruption. Adding, that after a strait inhibition, whosoever should attempt a challenge or combat, in case where the other party was restrained to answer him, as now all good subjects are, did by their own principles receive the dishonour and disgrace upon himself.
And for the present cause, the court hath ordered, adjudged, and decreed, that the said William Priest and Richard Wright be committed to the prison of the Fleet, and the said Priest to pay five hundred pounds, and the said Wright five hundred marks, for their several fines to his Majesty's use. And to the end, that some more public example may be made hereof amongst his Majesty's people, the court hath further ordered and decreed, that the said Priest and Wright shall at the next assizes, to be holden in the county of Surrey, publicly, in face of the court, the judges sitting, acknowledge their high contempt and offence against God, his Majesty, and his laws, and show themselves penitent for the same.
Moreover, the wisdom of this high and honourable court thought it meet and necessary, that all sorts of his Majesty's subjects should understand and take notice of that which hath been said and handled this day touching this matter, as well by his Highness's attorney-general, as by the lords judges, touching the law in such cases. And therefore the court hath enjoined Mr. Attorney to have special care to the penning of this decree, for the setting
forth in the same summarily the matters and reasons, which have been opened and delivered by the court touching the same; and nevertheless also at some time convenient to publish the particulars of his speech and declaration, as very meet and worthy to be remembered and made known unto the world, as these times are. And this decree, being in such sort carefully drawn and penned, the whole court thought it meet, and so have ordered and decreed, that the same be not only read and published at the next assizes 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 known in all shires of this kingdom. And to that end the justices of assize are required by this honourable court to cause this decree to be solemnly
read and published in all the places and sittings of their several circuits, and in the greatest assembly; to the end, that all his Majesty's subjects may take knowledge and understand the opinion of this honourable court in this case, and in what measure his Majesty and this honourable court purposeth to punish such as shall fall into the like contempt and offences hereafter. Lastly, this honourable court much approving that which the right honourable Sir Edward Coke, knight, lord chief justice of England, did now deliver touching the law in this case of duels, hath enjoined his lordship to report the same in print, as he hath formerly done divers other cases, that such as understand not the law in that behalf, and all others, may better direct themselves, and prevent the danger thereof hereafter.
THE KING'S ATTORNEY-GENERAL,
AGAINST WILLIAM TALBOT,
A COUNSELLOR AT LAW, OF IRELAND,
UPON AN INFORMATION IN THR STAR-CHAMBER " ORE TENTS," FOR A WRITING UNDER HIS HAND, WHEREBY THK 8AID WILLIAM
ULTIMO DIE TERMINI HILARII, UNDECIMO JACOBI REGIS.
I Brought before you the first sitting of this term the cause of duels j but now this last sitting I shall bring before you a cause concerning the greatest duel which is in the christian world, the duel and conflict between the lawful authority of sovereign kings, which is God's ordinance for the comfort of human society, and the swelling pride and usurpation of the see of Rome, in temporalibus, tending altogether to anarchy and confusion. Wherein if this pretence in the pope of Rome, by cartels to make sovereign princes as the banditti, and to proscribe their lives, and to expose their kingdoms to prey; if these pretences, 1 say, and all persons that submit themselves to that part of the pope's power in the least degree, be not by all possible severity repressed and punished, the state of christian kings will be no other than the ancient torment described by the poets in the hell of the heathen; a man sitting richly robed, solemnly attended, delicious fare, &c. with a sword hanging over his head, hanging by a
small thread, ready every moment to be cut down by an accursing and accursed hand. Surely I had thought they had been the prerogatives of God alone, and of his secret judgments: "Solvam cingula regum," " I will loosen the girdles of kings;" or again, "He poureth contempt upon princes;" or, "I will give a king in my wrath, and take him away again in my displeasure;" and the like: but if these be the claims of a mortal man, certainly they are but the mysteries of that person which "exalts himself above all that is called God," "supra omne quod dicitur Deus." Note it well, not above God, though that in a sense be true, but "above all that is called God;" that is, lawful kings and magistrates.
But, my lords, in this duel I find this Talbot, that is now before you, but a coward; for he hath given ground, he hath gone backward and forward; but in such a fashion, and with such interchange of repenting and relapsing, as I cannot tell whether it doth extenuate or aggravate his offence. If he shnll more publicly in the face of the court fall and settle upon a right mind, I shall be glad of it; and he