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Again, my lords, it is a miserable effect, when young men full of towardness and hope, such as the poets call aurortp Jilii, sons of morning, in whom the expectation and comfort of their friends consisteth, shall be cast away and destroyed in such a vain manner; but much more it is to be deplored when Bo much noble and genteel blood should be spilt upon such follies, as, if it were adventured in the field in service of the king and realm, were able to make the fortune of a day, and to change the fortune of a kingdom. So as your lordships see what a desperate evil this is; it troubleth peace, it disfurnisheth war, it bringeth calamity upon private men, peril upon the state, and contempt upon the law.
Touching ihe causes of it; the first motive, no doubt, is a false and erroneous imagination of honour and credit: and therefore the king, in his last proclamation, doth most aptly and excellently call them bewitching duels. For if one judge of it truly, it is no better than a sorcery that enchanteth the spirits of young men, that bear great minds with a false show, species falsa; and a kind of satanical illusion and apparition of honour against religion, against law, against moral virtue, and against the precedents and examples of the best times and valiantest nations; as I shall tell you by and by, when I shall show you the law of England is not alone in this point.
But then the seed of this mischief being such, it is nourished by vain discourses, and green and unripe conceits, which nevertheless have so prevailed, as though a man were staid and sober-minded, and a right believer touching the vanity and unlawfulness of these duels; yet the stream of vulgar opinion is such, as it imposeth a necessity upon men of value to conform themselves, or else there is no living or looking upon men's faces: so that we have not to do, in this case, so much with particular persons, as with unsound and depraved opinions, like the dominations and spirits of the air which the Scripture speaketh of.
Hereunto may be added, that men have almost lost the true notion and understanding of fortitude and valour. For fortitude distinguisheth of the grounds of quarrels whether they be just; and not only so, but whether they be worthy; and setteth a better price upon men's lives than to bestow them idly: nay, it is weakness and disesteem of a man's self, to put a man's life upon such liedger performances: a man's life is not to be trifled away; it is to be offered up and sacrificed to honourable services, public merits, good causes, and noble adventures. It is in expense of blood as it is in expense of money; it is no liberality to make a profusion of money upon every vain occasion, nor no more it is fortitude to make effusion of blood, except the cause be of worth. And thus much for the causes of this evil.
For the remedies, I hope some great and noble person will put his hand to this plough, and I wish that my labours of this day may be but forerunners to the work of a higher and better hand. But yet to deliver my opinion as may be proper for this time and place, there be four things that I have thought
on, as the most effectual for the repressing of this depraved custom of particular combats.
The first is, That there do appearand be declared a constant and settled resolution in the state to abolish it. For this is a thing, my lords, must go down at once, or not at all; for then every particular man will think himself acquitted in his reputation, when he sees that the state takes it to heart, as an insult against the king's power and authority, and thereupon hath absolutely resolved to master it; like unto that which was set down in express words in the edict of Charles IX. of France touching duels, that the king himself took upon him the honour of all that took themselves grieved or interested for not having performed the combat. So must the state do in this business: and in my conscience there is none that is but of a reasonable sober disposition, be he never so valiant, except it be some furious person that i« like a firework, but will be glad of it, when he shall see the law and rule of state disinterest him of a vain and unnecessary hazard.
Secondly, Care must be taken that this evil be no more cockered, nor the humour of it fed; wherein I humbly pray your lordships that I may speak my mind freely, and yet be understood aright. The proceedings of the great and noble commissioners martial I honour and reverence much, and of them I speak not in any sort; but I say the compounding of quarrels, which is otherwise in use by private noblemen and gentlemen, it is so punctual, and hath such reference and respect unto the received conceits, what's before-hand, and what's behind-hand, and I cannot tell what, as without all question it doth, in a fashion, countenance and authorize this practice of duels, as if it bad in it somewhat of right.
Thirdly, I must acknowledge that I learned out of the king's last proclamation the most prudent and best applied remedy for this offence, if it shall please his Majesty to use it, that the wit of man can devise. This offence, my lords, is grounded upon a false conceit of honour, and therefore it would be punished in the same kind, " in eo quis rectissime plectitur, in quo peccat." The fountain of honour is the king and his aspect, and the access to his person continueth honour in life, and to be banished from his presence is one of the greatest eclipses of honour that can be; if his Majesty shall be pleased that when this court shall censure any of these offences in persons of eminent quality, to add this out of his own power and discipline, that these persons shall be banished and excluded from his court for certain years, and the courts of his queen and prince, I think there is no man that hath any good blood in him will commit an act that shall cast him into that darkness, that he may not behold his sovereign's face.
Lastly, and that which more properly concemeth this court: We see, my lords, the root of this offence is stubborn; for it despiseth death, which is the utmost of punishments; and it were a just but a miserable severity to execute the law without all remission or mercy, where the case proveth capital. And yet the late severity in France was more, where, by a kind of martial law, established by ordinance of the king and parliament, the party that had slain another was presently had to the gibbet, insomuch as gentlemen of great quality were hanged, their wounds bleeding, lest a natural death should prevent the example of justice. But, my lords, the course which we shall take is of far greater lenity, and yet of no less efficacy; which is to punish, in this court, all the middle acts and proceedings which tend to the duel, which I will enumerate to you anon, and so to hew and vex the root in the branches, which, no doubt, in the end will kill the root, and yet prevent the extremity of law.
Now for the law of England, I see it excepted to, though ignorantly, in two points:
The one, That it should make no difference between an insidious and foul murder, and the killing of a man upon fair terms, as they now call it.
The other, That the law hath not provided sufficient punishment, and reparations, for contumely of words, as the lie, and the like.
But these are no better than childish novelties against the divine law, and against all laws in effect, and against the examples of all the bravest and most virtuous nations of the world.
For first, for the law of God, there is never to be found any difference made in homicide, but between homicide voluntary and involuntary, which we term misadventure. And for the case of misadventure itself, there were cities of refuge j so that the offender was put to his flight, and that flight was subject to accident, whether the revenger of blood should overtake him before he had gotten sanctuary or no. It is true that our law hath made a more subtle distinction between the will inflamed and the will advised, between manslaughter in heat and murder upon prepensed malice or cold blood, as the soldiers call it, an indulgence not unfit for a choleric and warlike nation; for it is true, "ira furor brevis:" a man in fury is not himself. This privilege of passion the ancient Roman law restrained, but to a case: that was, if the husband took the adulterer in the manner; to that rage and provocation only it gave way, that a homicide was justifiable. But for a difference to be made in case of killing and destroying man, upon a fore-thought purpose, between foul and fail-, and as it were between single murder and vied murder, it is but a monstrous child of this latter age, and there is no shadow of it in any law divine or human. Only it is true, I find in the Scripture that Cain enticed his brother irrto the field and slew him treacherously; but Lamech vaunted of his manhood that he would kill a young man, and if it were to his hurt: so as I see no difference between an insidious murder and a bmving or presumptuous murder, but the difference between Cain and Lamech.
As for examples in civil states, all memory doth consent that Gra?cia and Rome were the most valiant and generous nations of the world; and, that which is more to be noted, they were free estates, and not under a monarchy; whereby a man would think it a great deal the more reason that particular persons should have righted themselves; and yet they had not this practice of duels, nor any thing that bare show thereof: and sure they would have had it, if
there had been any virtue in it. Nay, as he saith, "Fas e«t et ab hoste doceri." It is memorable, that is reported by a counsellor ambassador of the emperor's, touching the censure of the Turks of these duels: there was a combat of this kind performed by two persons of quality of the Turks, wherein one of them was slain, the other party was convented before the counsel of bashaws; the manner of the reprehension was in these words: "How durst you undertake to fight one with the other? Are there not christians enough to kill? Did you not know that whether of you shall be slain, the loss would be the Great Seignior's?" So as we may see that the most warlike nations, whether generous or barbarous, have ever despised this wherein now men glory.
It is true, my lords, that I find combats of two natures authorized, how justly I will not dispute as to the latter of them.
The one, when upon the approaches of armies in the face one of the other, particular persons have made challenges for trial of valours in the field upon the public quarrel.
This the Romans called Pugna per provocationem. And this was never, but either between the generals themselves, who are absolute, or between particulars by licence of the generals; never upon private authority. So you see David asked leave when he fought with Goliah; and Joab, when the armies were met, gave leave, and said, "Let the young men play before us." And of this kind was that famous example in the wars of Naples, between twelve Spaniards and twelve Italians, where the Italians bare away the victory; besides other infinite like examples worthy and laudable, sometimes by singles, sometimes by numbers.
The second combat is a judicial trial of right, where the right is obscure, introduced by the Goths and the northern nations, but more anciently entertained in Spain; and this yet remains in some cases as a divine lot of battle, though controverted by divines, touching the lawfulness of it: so that a wise writer saith, " Taliter pugnahtes videntur tentare Deum, quia hoc volnnt ut Deus ostendat et facial miraculum, ut jus tarn causam habens victor efficiatur, quod sa>pe contra accidit." But howsoever it he, this kind of fight taketh its warrant from law. Nay, the French themselves, whence this folly seemeth chiefly to have flown, never had it but only in practice and toleration, and never as authorized by law; and yet now of late they have been fain to purge their folly with extreme rigour, in so much as many gentlemen left between death and life in the duels, as I spake before, were hastened to hanging with their wounds bleeding. For the state found it had been neglected so long, as nothing could be thought cruelty which tended to the putting of it down.
As for the second defect pretended in our law, that it hath provided no remedy for lies and fillips, it may receive like answer. It would have been thought a madness amongst the ancient lawgivers, to have set a punishment upon the lie given, which in effect is but a word of denial, a negative of another's saying. Any lawgiver, if he had been asked 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