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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 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 bath absolutely resolved to master it; like unto that which was set down in express words in the edict of Charles the ninth of France touching Duels, That the King himself took upon him the honour of all that took themselves grieved or interessed 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 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 Marshall 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 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 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


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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 concerneth 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 insi. dious and foul murther, 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 murther 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 that was,

if the husband took the adulterer in the manner; to that rage and provocation only it gave way, that it was an 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 fair, and as it were between single murther and vied murther, it is but a monstrous child of this later 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 inticed his brother into the field and slew him treacherously, but Lamed vaunted of his manhood that he would kill a young man and if it were in his hurt : So as I see no difference between an insidious murther and a braving or presumptuous murther, but the difference between Cain and Lamed.

As for examples in civil states, all memory doth consent that Græcia 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 is reported by a counsellor and 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 council of Bassaes; the manner of the repre

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hension 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 should be slain, the loss would be the Great Seigneours ? 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 later 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 were 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 nation, 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 sepe contra accidit. But howsoever it be, this kind of fight taketh his warrant from law. Nay, the French themselves, whence this folly seemeth chiefly to have flown, never had it but only in practice and toleration, but 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 gen. tlemen left between death and life in the Duels (as I spake be. fore) 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 dowu.

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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 80 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 them selves are extant) what extreme and exquisite reproaches were tossed


and down in the senate of Rome and the places of assembly, and the like in Græcia, and yet no man took himself fouled by them, but took them but for breath and the stile 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 exemplarly. 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

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