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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 infal. lible, that wheresoever an offence is capital or matter of felony if it be acted and performed, there the conspiracy, combination, or practice tending to the same 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 for as much as every appointment of the field is in law but a combination of plotting of a murther, 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; 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 throughly 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 mau 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 scandalous bruits or writings, contrary to a former proclamation published by his Majesty in that behalf ; that in all these cases his Majesty's Attorneygeneral, in 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 Marshall to the more exact remedies; adding further, 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 inceuse 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 said 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 ma
ture 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, mischief 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; specially 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 according to his own passions and fancies; insomuch as the very practice of Chivalry in Justs and Tourneys, 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 and 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 trifing disgrace, as to think there is no recure of it, but by 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 pound, 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 bath been said and handled this day touching this matter, as well by his
Highness' Attorney-general, as by the Lords Judges, touching the law in such cases. And therefore the Court hath enjoined Master 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 to 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.
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