« AnteriorContinuar »
A PROPOSITION FOR THE REPRESSING OF SINGULAR COMBATS OR DUELS.
First, for the ordinance which his Majesty may establish herein, I wish it may not look back to any offence past, for that strikes before it warns. I wish also it may be declared to be temporary, until a parliament; for that will be very acceptable to the parliament; and it is good to teach a parliament to work upon an edict or proclamation precedent.
For the manner; I should think fit there be published a grave and severe proclamation, induced by the overflow of the present mischief.
For the ordinance itself: first, I consider that offence hath vogue only amongst noble persons, or persons of quality. I consider also that the greatest honour for subjects of quality in a lawful monarchy, is to have access and approach to their sovereign's sight and person, which is the fountain of honour; and though this be a comfort all persons of quality do not use; yet there is no good spirit but will think himself in darkness, if he be debarred of it. Therefore I do propound that the principal part of the punishment be, that the offender (in the cases hereafter set down) be banished perpetually from approach to the courts of the King, Queen, or Prince.
Secondly, That the same offender receive a strict prosecution by the King's attorney, ore tenus, in the Star-Chamber; (for the fact being notorious, will always be confessed, and so made fit for an ore tenus.) And that this prosecution be without respect of persons, be the offender never so great; and that the fine set be irremissible.
Lastly, For the cases, that they be these following:
1. Where any singular combat, upon what quarrel soever, is acted and performed, though death do not ensue.
2. Where any person passeth beyond the seas, with purpose to perform any singular combat, though it be never acted. 3. Where any person sendeth a challenge.
4. Where any person accepteth a challenge.
5. Where any person carrieth or delivereth a challenge.
6. Where any person appointeth the field, directly or indirectly, although it be not upon any cartel or challenge in writing.
7. Where any person accepteth to be a second in any quarrel.
This advice was substantially acted upon. "His Majesty's edict and severe censure against private combats and combatants," etc. (which seems to have been meant for such a "grave and severe proclamation" as Bacon recommended) was published in the course of the autumn, and contained an explanation of the intentions of the Government much in accordance with his suggestions. The composition however having been left to the care and taste of the Earl of Northampton,' it is difficult to get at the matter for the art, and it can hardly have taken effect upon popular opinion. It was probably from a perception of this (though such a motive could not be declared) that Bacon took another course to make the determination of the Government in the matter known and respected. Sir Henry Hobart, when he was raised to the Bench, had in his hands a case of duelling. In what shape it came before him and how he proposed to treat it, we are not informed; but it was a case in point and ready for hearing. A challenge had been sent and refused. The persons were obscure, and there does not appear to have been anything in the circumstances to aggravate the offence, but it would serve the purpose of an example and (properly handled) of a proclamation. Bacon accordingly brought it before the Star chamber at the first sitting of the Court in Hilary Term (26 January 1613-4), and handled it so that the publication of his speech with the decree of the Court annexed (which was part of the order) formed an excellent declaration both of the state of the law with regard to challenges and the resolution of the Government to enforce it.
I reprint it from the original edition, which was published in 1614, with the following title:-" The charge of Sir Francis Bacon, knight, his Majesties Attourney generall, touching Duells, upon an information in the Star-chamber against Priest and Wright. With the Decree of the Star-chamber in the same cause."
1 "The proclamation about Duels had been published before this, but that I was desirous to give time to the last that was done by the King himself, that the subjects which are most remote might have time to rivet and imprint," etc. "When this impression is fully settled, then will I bring my patch upon the stage," etc. Northampton to Sir T. Lake, 18 Nov. 1613. S. P. Dom. James I.
THE CHARGE OF SIR FRANCIS BACON, KNIGHT, HIS MAJESTY's ATTORNEY-GENERAL, TOUCHING DUELS; UPON AN INFORMATION IN THE STAR-CHAMBER AGAINST PRIEST AND Wright.
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 shewed the resolution myself hath to proceed without respect of persons in this business: But finding this cause on foot in my predecessor's time, and published and ready for hearing, I thought to lose no time, in a mischief that groweth every day; and besides it passeth not amiss sometimes in government, that the greater sort be admonished by an example made in the meaner, and the dog to be beaten 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 barbers 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 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 it time best spent to speak somewhat,
First, of the nature and greatness of this mischief.
Secondly, of the causes and remedies.
Thirdly, of the justice of the law of England, which some stick not to think defective in this matter.
Fourthly, of the capacity of this Court, where certainly the remedy of this mischief is best to be found.
And fifthly, touching mine own purpose and resolution, wherein I shall humbly crave your Lordships' aid and assist
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 hand 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 dangers and inconveniencies 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 banding, and from banding 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 unperfect body, continually subject to inflammations and convulsions.
Besides, certainly, both in divinity and in policy, offences of presumption are the greatest. Other offences yield and consent to the law that it is good, not daring to make defence, or to justify themselves; but this offence 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 year-books and statute-books must give place to some French and Italian pamphlets, which handle the doctrine of Duels, which if they be in the right, transeamus ad illa, let's 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 auroræ 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 gentle blood shall 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 the 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 amply 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 shew, 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 shew 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 soberminded, 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 dis-esteem of a man's self, to put a man's life upon such ledgier 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.