My Lords, I thought it fit for my place, and for these times, to
bring to hearing before your lordships some cause touching private
duels, to see if this court can do any good to tame and reclaim that
evil, which seems unbridled. And I could have wished that I had met
with some greater persons, as a subject for your censure; both
because it had been more worthy of this presence, and also the
better to have shown the resolution I myself have to proceed without
respect of persons in this business. But finding this cause on foot
in my predecessor's time, I thought to lose no time in a mischief
that groweth every day; and besides, it passes not amiss sometimes
in government, that the greater sort be admonished by an example
made in the meaner, and the dog to be eaten before the lion. Nay, I
should think, my lords, that men of birth and quality will leave the
practice, when it begins to be vilified, and come so low as to
barber-surgeons and butchers, and such base mechanical persons. And
for the greatness of this presence, in which I take much comfort,
both as I consider it in itself, and much more in respect it is by
his Majesty's direction, I will supply the meanness of the
particular cause, by handling of the general point; to the end that
by the occasion of this present cause, both my purpose of
prosecution against duels and the opinion of the court, without
which I am nothing, for the censure of them may appear, and thereby
offenders in that kind may read their own case, and know what they
are to expect; which may serve for a warning until example may be
made in some greater person, which I doubt the times will but too
soon afford.
Therefore, before I come to the particular, whereof your lordships
are now to judge, I think the time best spent to speak somewhat (1)
of the nature and greatness of this mischief; (2) of the causes and
remedies; (3) of the justice of the law of England, which some stick
not to think defective in this matter; (4) of the capacity of this
court, where certainly the remedy of this mischief is best to be
found; (5) touching mine own purpose and resolution, wherein I shall
humbly crave your lordships' aid and assistance.
For the mischief itself, it may please your lordships to take into
your consideration that, when revenge is once extorted out of the
magistrate's hands, contrary to God's ordinance, _mihi_ _vindicta_,
_ego_ _retribuam_, and every man shall bear the sword, not to
defend, but to assail, and private men begin once to presume to give
law to themselves and to right their own wrongs, no man can foresee
the danger and inconveniences that may arise and multiply thereupon.
It may cause sudden storms in court, to the disturbance of his
Majesty and unsafety of his person. It may grow from quarrels to
bandying, and from bandying to trooping, and so to tumult and
commotion; from particular persons to dissension of families and
alliances; yea, to national quarrels, according to the infinite
variety of accidents, which fall not under foresight. So that the
State by this means shall be like to a distempered and imperfect
body, continually subject to inflammations and convulsions.
Besides, certainly both in divinity and in policy, offenses of
presumption are the greatest. Other offenses yield and consent to
the law that it is good, not daring to make defense, or to justify
themselves; but this offense expressly gives the law an affront, as
if there were two laws, one a kind of gown law and the other a law
of reputation, as they term it. So that Paul's and Westminster, the
pulpit and the courts of justice, must give place to the law, as the
King speaketh in his proclamation, of ordinary tables, and such
reverend assemblies; the Yearbooks, and statute books must give
place to some French and Italian pamphlets, which handle the
doctrines of duels, which, if they be in the right, _transeamus_
_ad_ _illa_, let us receive them, and not keep the people in
conflict and distraction between two laws. Again, my lords, it is a
miserable effect, when young men full of towardness and hope, such
as the poets call "_Aurorae_ _filii_," sons of the 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 so 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
change the future of a kingdom. So 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 the causes of it: the first motive, no doubt, is a false
and erroneous imagination of honor 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 honor 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 that 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 valor. 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 ledger performances.
A man's life is not to be trifled away; it is to be offered up and
sacrificed to honorable 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 is it fortitude to make effusion of
blood, except the cause be of worth. And thus much for the cause 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 labors 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 appear and 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 we set down in express words in
the edict of Charles IX. of France, touching duels, that the King
himself took upon him the honor 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 is 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 humor 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 honor 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, is so punctual, and hath such reference and
respect unto the received conceits, what is beforehand, and what is
behindhand, and I cannot tell what, as without all question it doth,
in a fashion, countenance and authorize this practice of duels as if
it had 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
offense, if it shall please his Majesty to use it, that the wit of
man can devise. This offense, my lords, is grounded upon a false
conceit of honor; and therefore it would be punished in the same
kind, in _eo_ _quis_ _rectissime_ _plectitur_, _in_ _quo_ _peccat_.
The fountain of honor is the King and his aspect, and the access to
his person continueth honor in life, and to be banished from his
presence is one of the greatest eclipses of honor that can be. If
his Majesty shall be pleased that when this court shall censure any
of these offenses 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 concerneth this court. We see,
my lords, the root of this offense 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; 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 killing and destroying man, upon a
forethought purpose, between foul and fair, 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 into 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 braving or presumptuous murder, but the difference
between Cain and Lamech. As for examples in civil states, all
memory doth consent, that Graecia 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 anything that bare show thereof; and sure they would
have had it, if there had been any virtue in it. Nay, as he saith,
"_Fas_ _est_ _et_ _ab_ _hoste_ _doceri_" It is memorable, that which
is reported by a counsel or ambassador of the emperor, 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, and the other party was converted before the
council 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 seignor's?" So,
as we may see, 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 valors 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 were absolute, or between particulars by
license of the generals; never upon private authority. So you see
David asked leave when he fought with Goliath; and Joab, when the
armies were met, gave leave, and said "Let the young man 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 bore 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_
_pugnantes_ _videntur_ _tentare_ _Deum_, _quia_ _hoc_ _volunt_ _ut_
_Deus_ _ostendat_ _et_ _faciat_ _miraculum_, _ut_ _justam_ _causam_
_habens_ _victor_ _efficiatur_, _quod_ _saepe_ _contra_ _accidit_."
But whosoever it be, 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 rigor, 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 dispute whether an action of injury lie for it, and rather
resolve the contrary. And Francis I. 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 the words of approach 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 Graecia, 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 was spilt about them.
So of every touch or light blow of the person, they are not in
themselves considerable, save that they have got them upon the stamp
of a disgrace, which maketh these light things pass for great
matters. The law of England and all laws hold these degrees of
injury to the person, slander, battery, mayhem, 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
Gonsalvo, the great and famous commander, that was wont to say a
gentleman's honor 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
everything. 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 offense is capital, or matter of
felony, though it be not acted, there the combination or practice
tending to the offense is punishable in this court as high
misdemeanor. So practice to imprison, 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 a 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 I would be thought not to innovate anything of my own
head, but to follow the former precedents of the court, though I
mean to do it more thoroughly, because the time requires it more.
Therefore now to come to that which concerneth my part, I say that
by the favor 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 to be 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 former proclamation
published by his Majesty in that behalf.
Nay I hear there be some counsel learned of duels, that tell voting
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 the 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_ _se_ as _felo_ _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 does _machinari_ _contra_ _coronam_, as the words
of the writ be, seeking to murder a subject; for that is ever
_contra_ _coronam_ _et_ _dignitatem_. I have also a suit to your
lordships all in general, that for justice's sake, and for true
honor's sake, honor of religion, law, and the King our master,
against this fond and false disguise or puppetry of honor. 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, I 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. _Non_ _hos_ _quaesitim_ _munus_ _in_ _usus_--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 honor, except it
be upon a worthy matter. But this, _ipsi_ _viderunt_, I am resolved.