The charge of Sir Francis Bacon Knight, his Maiesties Attourney generall, touching duells vpon an information in the Star-chamber against Priest and Wright. With the decree of the Star-chamber in the same cause.

The charge of Sir Francis Bacon Knight, his Maiesties Attourney generall, touching duells vpon an information in the Star-chamber against Priest and Wright. With the decree of the Star-chamber in the same cause.

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Title page

THE CHARGE OF SIR FRANCIS BACON Knight his Maiesties Attourney generall, touching Duells, vpon an information in the Star-chamber against Priest and Wright.

THE DECREE OF THE STARCHAMBER IN THE SAME CAVSE. In camerâ stellatâ coram concilio ibidem 26o die Ianuarij anno vndecimo Iacobi regis.

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THE CHARGE OF SIR FRANCIS BACON KNIGHT, HIS Maiesties Attourney generall, touching Duells, vpon an information in the Star-chamber against Priest and Wright.

WITH The Decree of the Star-chamber in the same cause.

Printed for Robert Wilson, and are to be sold at Graies Inne Gate, and in Paules Churchyard at the signe of the Bible. 1624.

THE CHARGE OF SIR FRANCIS BACON Knight his Maiesties Attourney generall, touching Duells, vpon an information in the Star-chamber against Priest and Wright.

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MY LORDS, I thought it fit for my place, and for these times to bring to hearing before your Lord-ships some cause touching priuate Duells, to see if this Court can doe any good to tame and reclaime that euill which seemes vnbrideled. [Page] And I could haue wished that I had met with some greater persons, as a subiect for your censure, both because it had bin more worthy of this presence, and also the better to haue shewed the resolution my selfe hath to proceed without respect of persons in this businesse: But finding this cause on foote in my predecessors time, and published and ready for hearing, I thought to loose no time, in a mischeefe that groweth euery day; and besides it passeth not amisse some-times in gouernment, that the greater sort be admonished by an example made in the meaner, and the dogge to be beaten before the lyon. Nay I should thinke (my Lords) that men of birth and quality will leaue the practise, when it begins to bee vilified and come so lowe as to Barbers-surgegeons and Butchers, and such base mechanicall persons.

[Page]And for the greatnesse of this presence, in which I take much comfort, both as I consider it in it selfe, and much more in respect it is by his Maiesties direction; I will supplie the meanesse of the perticular cause, by handling of the generall poynt; to the end that by occasion of this present cause, both my purpose of prosecution against Duells, and the opinion of the Court (without which I am nothing) for the censure of them may appeare, and thereby offendors in that kind may read their owne case, and know what they are to expect, which may serue for a warning vntill example may bee made in some greater person, which I doubt the times will but too soone afford.

Therefore before I come to the perticular whereof your Lordships are now to iudge, I thinke it time best spent to speake somewhat.

[Page]First, of the nature and greatnesse of this mischeefe.

Secondly, of the causes, and remedies.

Thirdly, of the Iustice of the law of England, which some stick not to think defectiue in this matter.

Fourthly, of the capacity of this Court, where certainly the remedy of this mischeefe is best to be found.

And Fifthly, touching mine owne purpose and resolution, wherein I shall humbly craue your Lordshipps ayde and assistance.

For the mischeefe it selfe, it may please your Lord-shippes to take into your consideration that when reuenge is once extorted out of the Magistrates hand contrarie to Gods ordinance, Mihi vindicta, ego retribuam, and euery man shall beare the sword not to defend but to assayle, and priuate men beginne [Page] once to presume to giue lawe to them-selues, and to right their owne wrongs, noe man can foresee the danders and inconueniences that may arise and multiply there-vpon. It may cause soddaine stormes in Court, to the disturbance of his Maiestie, and vnsaftie of his person. It may grow from quarrells, to banding, and from banding to trooping, and so to tumulte and commotion, from perticuler persons to dissention of families and aliances, yea to nationall quarrells, according to the infinite variety of accidents, which fall not vnder fore-sight; so that the State by this meanes shal be like to a distempered, and vnperfect body, continually subiect to inflamations and convulsions.

Besides, certainely, both in Diuinity and in Pollicie, Offences of presumption are the greatest. Other offences yeeld [Page] and consent to the law that it is good, not daring to make defence, or to iustifie themselues; but this offence expresly giues the Law an affront, as if there were two lawes, one a kind of Gowne-law, and the other a law of reputation, as they tearme it, so that Pauls & Westminster, the Pulpet and the courts of iustice must giue place to the law (as the King speaketh in his proclamation) of Ordinary tables, and such reuerent assemblies; the year books and statute books must giue place to some French and Italian pamphlets, which handle the doctrine of Duells, which if they be in the right, trans [...]amus ad illa, lets receiue them, and not keepe the people in conflict and distraction betweene two lawes.

Againe (my Lords) it is a miserable effect, when young men, full of towardnesse and hope, such as the [Page] Poets cal aurorae filii, sonnes of the morning, in whom the expectation and comfort of their friends consisteth, shall bee cast away and destroyed in such a vaine manner; but much more it is to bee deplored when so much noble and gentle blood shall be spilt vpon such follies, as if it were aduentured in the field in seruice of the king & realme, were able to make the fortune of a day, and to change the fortune of a kingdome. So as your Lordships see what a desperate euill this is; it troubleth peace, it disfurnisheth war, it bringeth calamity vpon priuate men, perill vpon the state, and contempt vpon the lawe.

Touching the causes of it; The first motiue no doubt is a false and erronious imagination of honour and credit; and therefore the King, in his last Proclamation, doth most aptly and excellently [Page] call them, bewitching Duells. For, if one iudge of it truely, it is noe better then a sorcery that enchanteth the spirits of young men, that beare great myndes, with a false shew, species falsa; and a kind of satanicall illusion and apparition of honour; against religion, against lawe, against morall vertue, and against the presidents 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 poynt.

But then the seede of this mischeefe being such, it is nourished by vaine discourses, and greene and vnripe conceipts, which neuerthelesse haue so preuayled, as though a man were staid and sober minded, and a right beleeuer touching the vanity and vnlawfulnesse of these Duells, yet the streame of vulgar opinion is such, as it imposeth a [Page] necessity vpon men of value to conforme them-selues; or else there is no liuing or looking vpon mens faces: So that we haue not to doe, in this case, so much with perticuler persons, as with vnsound and depraued opinions, like the dominations and spirits of the ayre, which the Scripture speaketh of.

Here-vnto may be added, that men haue almost lost the true notion and vnderstanding of Fortitude and Valour. For Fortitude distinguisheth of the grounds of quarrels, whether they bee iust; and not onely so, but whether they be worthy; and setteth a better price vpon mens liues then to bestow them idely, Nay it is weakenesse, and disesteeme of a mans selfe, to put a mans life vpon such ledgier performances; A mans life is not to bee tryfled away, it is to bee offered vp and sacrificed to honorable seruices, publike merites, [Page] good causes, and noble aduentures. It is in expence of blood as it is in expence of mony, It is no liberality to make a profusion of mony vpon euery vaine occasion, nor noe more it is fortitude to make effusion of bloud except the cause bee of worth. And thus much for the causes of this euill.

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 fore-runners to the worke of a higher and better hand. But yet to deliuer my opinion, as may bee proper for this time and place; There bee foure things that I haue thought on, as the most effectuall for the repressing of this depraued custome of perticular Combats:

The first is, that there doe appeare and bee declared a constant and settled resolution in the State to abolish it. For [Page] this is a thing (my Lords) must goe downe at once, or not at all: For then euery perticular man will thinke him-selfe acquitted in his reputation, when he sees that the state takes it to heart, as an insult against the Kings power and authority, and thervpon hath absolutely resolued to maister it, like vnto that which was set downe in expresse words in the edict of CHARLES the ninth of France touching Duells, That the King him-selfe tooke vpon him the honor of all that tooke them-selues grieued or interessed for not hauing performed the Combat; So must the State doe in this businesse, and in my Conscience there is none that is but of a reasonable sober disposition, bee hee neuer so valiant, (except it bee some furious person that is like a fire-worke) but will bee glad of it, when hee shall see the law and rule of State disinterest him of a [Page] vaine and vnnecessarie hazard.

Secondly, care must be taken that this euill bee noe more cockered, nor the humor of it fed; wherein I humbly pray your Lordships that I may speake my mind freely, and yet be vnderstood aright. The proceedings of the great and noble Commissioners Marshall, I honor and reverence much, & of them I speake not in any sort; But I say the compounding of quarrells, which is other-wise in vse, by priuate noble men and gentlemen, it is so punctuall, and hath such reference and respect vnto the receyued conceipts, whats before hand, and whats behinde hand, and I cannot tel what, as without all question it doth, in a fashion, countenance and authorise this practise of Duells, as if it had in it some-what of right.

Thirdly, I must acknowledge that I learned out of the Kings last proclamation [Page] the most prudent and best applied remedy for this offence (if it shall please his Maiestie to vse it) that the wit of man can deuise. This offence (my Lords) is grounded vpon a false conceipt of honour, and therefore it would bee punished in the same kinde, In eo quis rectissimé plectitur in quo peccat. The fountaine of honour is the King, and his aspect, and the accesse to his person continueth honour in life, and to be banished from his presence is one of the greatest eclipses of honour that can bee; if his Maiestie shall be pleased that when this Court shall censure any of these offences in persons of eminent quality, to adde this out of his owne power and discipline, that these persons shall bee banished and excluded from his Court for certaine yeares, and the Courts of his Queene and Prince, I thinke there is noe man that hath any [Page] good blood in him, will commit an act that shall cast him into that darkenesse, that hee may not behold his Soueraignes face.

Lastly, and that which more properly concerneth this Court, wee see (my Lords) the root of this offence is stubborn: For it despiseth death, which is the vtmost of punishments, and it were a iust, but a miserable seuerity, to execute the law without all remission or mercy, where the case proueth capitall. And yet the late seuerity in France was more, where by a kind of Marshall law established by ordinance of the King and Parliament, the party that had slaine another was presently had to the gibbet, in so much as gentlemen of great quality were hanged, theyr wounds bleeding, least a naturall death should preuent the example of iustice. But (my Lords) the course [Page] which wee shall take is of farre greater lenity, and yet of no lesse efficacy; which is to punish, in this Court, all the middle acts and proceedings which which tend to the Duell, (which I will enumerate to you anon) and so to hew and vexe the roote in the branches, which no doubt, in the end, will kill the roote, and yet preuent the extremity of law.

Now for the law of England, I see it excepted to, though ignorantly in two poyntes;

The one, that it should make no difference betweene an insidious and foule murther, and the killing of a man vppon fayre termes, as they now call it.

The other, that the law hath not prouided sufficient punishment, and reparations for contumely of words, as the Lie and the like.

[Page]But these are noe better then childish nouelties against the diuine lawe, and against all lawes in effect, and against the examples of all the brauest and most vertuous Nations of the World.

For first for the law of God, there is neuer to be found any difference made in homicide, but betweene homicide voluntary and involuntary, which we tearme misaduenture. And for the case of misaduenture it selfe, there were Citties of refuge; so that the offendor was put to his flight, & that flight was subiect to accident, whether the reuenger of bloud should ouer-take him before he had gotten sanctuary or noe; It is true that our law hath made a more subtile distinction betweene the will enflamed, and the wil aduised, between manslaughter in heat, and murther vpon prepensed malice, or could bloud, [Page] as the souldiers call it, an indulgence not vnfit for a chollericke and warlike Nation, for it is true, Ira furor breuis. a man in fury is not him-selfe. This priueledge of passion the ancient Roman law restrayned, but to a Case, that was, if the husband, tooke the adulterer in the manner; to that rage and prouocation onely it gaue way, that it was an homycide was iustifiable. But for a difference to bee made in case of killing and destroying man, vpon a forethought purpose, betweene fowle and fayre, and as it were betweene single murther and vyed murther, it is but a monstrous childe of this later age, and there is noe shadow of it in any law Diuine or humane. Onely it is true, I finde in the Scripture that CAINE inticed his brother into the field, and slew him trecherously, But LAMED vaunted of his man-hood, that he would [Page]kill a young man and if it were in his [...]rt: So as I see no difference betweene an insidious murther, and a brauing, or presumtuous murther, but the difference betweene Cain and Lamed.

As for examples in Ciuill states all memory doth consent that Grecia and Rome were the most valiant and generous Nations of the world, and that which is more to bee noted they were free estates, and not vnder a Monarchy, whereby a man would thinke it a great deale the more reason that perticuler persons should haue righted themselues; and yet they had not this practise of Duells, nor any thing that bare shew thereof; and sure they would haue had it if there had bin any vertue in it. Nay as he saith, [...]as est et, ab hoste doceri, it is memorable that is reported by a Councellor and Ambassador [Page] of the Emperors, touching the censure of the Turkes, of these Duells; There was a Combate of this kind, performed by two persons of quality of the Turkes, wherein one of them was slaine, the other party was conuented before the Councell of Bassaes; the manner of the reprehension was in these words; How durst you vndertake to fight one with the other? are there not Christians enough to kill? did you not know that whether of you should bee slaine the losse would bee the great Seigneours? So as wee may see that the most warlike Nations, whither generous or Barbarous hath euer despised this wherein now men glory.

It is true (my Lords) that I find Combats of two natures authorised how iustly I will not dispute, as to the later of them.

[Page]The one when vpon the approches of armies in the face one of the other perticuler persons haue made challenges for triall of valors in the field, vpon the publike quarrell.

This the Romanes called, pugna per-prouocationem. And this was neuer, but either betweene the Generalls themselues, who were absolute, or betweene perticulers, by license of the generalls, neuer vpon priuate authority. So you see DAVID asked leaue when hee fought with GOLIAH, and IOAB when the armies were met, gaue leaue, and said, let the young men play before vs, and of this kind was that famous example in the wars of Naples, between twelue Spaniards and twelue Italians, where the Italians bare away the victory; besides other infinite like examples worthy and laudable, some times by singles, some-times by numbers.

[Page]The second Combate is a iudiciall tryall of right, where the right is obscure, introduced by the Gothes and the Northerne Nation, but more anciently entertained in Spaine; and this yet remaines in some cases, as a Diuine lotte of battayle, though controuerted by Diuines touching the lawfulnes of it, So that a wise writer saith, Talitér pugnantes videntur tentare Deum, quia hoc volunt vt Deus ostendat et faciat miraculum, vt iustam causam habens victor efficiatur, quod saepé contrá accidit. But howsoeuer it bee, this kind of fight taketh his warrant from law. Nay the French themselues whence this folly seemeth chiefely to haue flowne neuer had it but onely in practise and tolleration, but neuer as authorized by law; And yet now of late they haue beene fayne to purge their folly with extreame rigour, insomuch as many [Page] Gentlemen left betweene death and life in the Duells (as I spake before) were hastned to hanging with their wounds bleeding. For the State found it had beene neglected so long, as nothing could be thought cruelty which tended to the putting of it downe.

As for the second defect, pretended in our law, that it hath prouided no remedy for lies and fillippes, it may receiue like answere; It would haue beene thought a madnes amongst the ancient law-giuers, to haue set a punishment vppon the lye giuen, which in effect is but a word of deniall, a negatiue of anothers saying. Any law-giuer, if hee had beene asked the question, would haue made Solons answer, that he had not ordained any punishment for it, because he neuer imagined the world would haue beene so fantasticall as to take it so highly. The Ciuilians they dispute [Page] whether an action of Iniury lie for it, and rather resolue the contrary. And Francis the first of France, who first set on & stamped this disgrace so deepe, is taxed by the iudgment of all wise writers, for beginning the vanity of it; for it was hee that when hee had himselfe giuen the ly and defie to the Emperor, to make it currant in the world, said in a solemne assembly, That hee was no honest man that would beare the lye, which was the fountaine of this new learning.

As for words of reproach and contumely (whereof the lye was esteemed none) it is not credible (but that the Orations themselues are extant) what extreame and exquisite reproaches were tossed vp and downe in the Senate of Rome, and the places of assembly, and the like in Grecia, and yet no man tooke himselfe [Page] fowled by them, but tooke them but for breath, and the stile of an enemy, and eyther despised them or returned them, but no blood spilt about them.

So of euery touch or light blow of the person, they are not in themselues considerable, saue that they haue got vppon them the stampe of a disgrace, which maketh these light things passe for great matter. The law of England, and all lawes hold these degrees of Iniury to the person; slander, battery, mayme, and death: And if there be extraordinary circumstances of despight and contumely, as in case of libells and bastanadoes, and the like, this Court taketh them in hand and punisheth them exemplarly. But for this apprehension of a disgrace, that a fillippe to the person should bee a mortall wound to the reputation, it were good that men did hearken vnto the saying [Page] of Consaluo the great and famous commaunder, that was wont to say; A Gentlemans honor should bee, De telâ crassiore, of a good strong warppe or webbe that euery little thing should not catch in it, when as now it seemes they are but of copwebbe lawne, or such light stuffe, which certainely is weakenesse, and not true greatnesse of mind, but like a sicke mans body, that is so tender that it feeles euery thing. And so much in maintenance and demonstration of the wisdome and iustice of the law of the land.

For the capacity of this Court, I take this to bee a ground infallible, that wheresoeuer an offence is capital, or matter of fellony, if it be acted, there the combination, or practise, tending to that offence is punishable in this Court, as a high misdemenor. So practise to impoison, though it tooke no effect, way-laying to murther [Page] though it tooke no effect, and the like, haue beene adiudged haynous misdemeanors punishable in this Court. Nay, inceptions and preparations in inferior crimes (that are not capitall) as suborning and preparing of witnesses, that were neuer deposed, or deposed nothing materiall, haue likewise beene censured in this Court, as appeareth by the decree in Garnons case.

Why? then the Maior proposition being such, the Minor cannot bee denied: for euery appoyntment of the field is but combination and plotting of murther, let them guilde it how they list, they shall neuer haue fairer termes of me in place of iustice. Then the conclusion followeth, that it is a case fit for the censure of this Court. And of this there be presidents in the very poynt of Challenge.

It was the case of Wharton, Plaintife [Page] against Ellekar and Acklam Defendants, where Acklam being a follower of Elleckars, was censured for carying a challeng from Ellecker to Wharton, though the challenge was not put in writing, but deliuered onely by word of message and there are words in the decree, that such challenges are to the subuersion of Gouernment.

These things are well knowne, and therfore I needed not so much to haue insisted vppon them, but that in this Case I would be thought not to innouate any thing of mine owne head, but to follow the former presidents of the Court, though I meane to doe it more throughly, because the time requires it more.

Therfore now to come to that which concerneth my part, I say, that by the fauour of the King and the Court, I will prosecute in this Court in the Cases following.

[Page]If any man shall appoint the field, though the fight be not acted or performed.

If any man shall send any Challenge in wrighting, or any message of Challenge.

If any man carry or deliuer any writing or message of Challenge.

If any man shall accept or returne a Challenge.

If any man shall accept to bee a second in a Challenge, of either side.

If any man shall depart the Realme with intention and agreement to performe the fight beyond the seaes.

If any man shall reuiue a quarrel by any scandalous bruites or wrightings contrary to a former Proclamation published by his Maiesty in that behalfe.

Nay I heare there be some Counsell learned of Duells, that tell yong men [Page] when they are before hand, and when they are otherwise, and thereby incense and incite them to the Duell, and make an art of it; I hope I shall meete with some of them too, and I am sure (my Lords) this course of preuenting Duels in nipping them in the budde, is fuller of clemency and prouidence then the suffering them to goe on, and hanging men with their wounds bleding, as they did in France.

To conclude, I haue some petitions to make, first, to your Lordshipp, my Lord Chancellor, that in case I be aduertised of a purpose in any to goe beyond the sea to fight, I may haue granted his Maiesties writ of Ne exeat regnum to stoppe him, for this Giant bestrideth the sea, and I would take and snare him by the foote on this side, for the combination and plotting is on this side though it should be acted [Page] beyond sea. And your Lordship said notably the last time I made a motion in this busines, that a man may be as well, fur de se as felo de se, if he steale out of the Realme for a bad purpose, and for the satisfiing of the wordes of the writte, no man will doubt but he doth machinari contra coronam (as the wordes of the writte be) that seketh to murther a subiect; for that is euer, contra coronam et dignitatem. I haue also a sute to your Lordships all in general, that for Iustice sake, and for true honors sake, honor of Religion, Law, and the King our Maister against this fond and false disguise or puppetrey of honor, I may in my prosecutiō (which it is like enough may some times stirr coales (which I esteme not for my particular, but as it may hinder the good seruice) I may (I say) be countenanced and assisted from your Lordships: Lastly I haue a [Page] petition to the noblesse and gentlemen of England, that they would learne to esteeme themselues at a iust price. Non hos quaesitum munus in vsus, their blood is not to be spilt like water or a vile thing, therefore that they would rest perswaded there cannot be a forme of honor, except it be vpon a worthy matter. But for this, Ipsi viderint, I am resolued. And thus much for the generall; now to the present case.

THE DECREE OF THE STARCHAMBER IN THE SAME CAVSE.
In camerâ stellatâ coram concilio ibidem 26o die Ianuarij anno vndecimo Iacobi regis.

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The Presence.

THO: Lo: Ellesmere LORD Chancellor of England.

HON: Earl of North: L: Priuie Seale

CHARLES Earle of Notting: Lo: high Admiral of England.

G [...]OR: Lo: Archbishop of Canterbury.

IOHN Lo: Bishop of London.

Sir EDVVARD Cooke Knight, L: chiefe Iustice of England.

[Page]The Earl of Suffolk Lord Chamberlaine. [...] Lord [...]o [...]che.

Sir Hen. Hobart Knight Lord chiefe Iustice of the common-pleas.

WILLIAM: Lo. Knolles, Treasuror of the Houshold.

EDVVARD Lo. Wotton Controwler.

IOH: Lo: Stanhop, Vicechamberlaine.

Sir IVLIVS Caesar knight, Chancellor of the Exchequer:

THis day was heard and debated at large, the seuerall matters of Informations here exhibited by Sir Francis Bacon Knight, his Maiesties Attourney Generall, th'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 th'other against Richard Wright Esquire for carrying [Page] and deliuering the said letter and sticke vnto the partie challenged, and for other contemptuous and insolent behauiour vsed before the Iustices of Peace in Surrey at their Sessions, before whom he was conuented. Vpon the opening of which cause his Highnes said Attourney generall did first giue his reason to the Court why in a case which he intended should be a leading case, for the repressing of so great a mischiefe in the commonwealth, and concerning an offence which raigneth chiefly amongst persons of honor and qualitie, he should begin with a cause which had passed betweene so meane persons as the defendants seemed to be; which he said was done because hee found this cause ready published and in so growing an euill, he thought good to lose no time, wherevnto he added, that it was not amisse sometimes [Page] to beate the dogge, before the Lyon, saying further, that hee thought it would be some motiue for persons of birth & countenance to leaue it, when they saw it was taken vp by base and mechanicall fellowes, but concluded; That hee resolued to proceed without respect of persons for the time to come, and for the present to supply the meannesse of this particular Case by insisting the longer vpon the generall point.

Wherein he did first expresse vnto the Court, at large, the greatnes & dangerous consequence of this presumptuous offence, which extorted reuenge out of the Magistrates hand, and gaue boldnes to priuate men to bee lawe giuers to themselues, the rather because it is an offence that doth iustifie it selfe against the lawe, and plainely giues the law an affront; describing also the [Page] miserable effect which it draweth vppon priuate families by cutting off yong men, otherwise of good hope, and cheifely the losse of the King and Common-wealth, by the casting away of much good blood, which being spent in the field vpon occasion of seruice were able to continew the renowne, which this Kingdome hath obtained in all ages, of being esteemed victorious.

Secondly his Maiesties said Atturney generall did discourse touching the causes and remedies of this mischefe, that preuaileth so in these times, shewing the ground thereof to bee a false and erroneous imagination of honor and credit, according to the terme which was giuen vnto those Duells, by a former proclamation of his Maiesties, which called them bewitching Duells, for that it is no better [Page] then a kind of sorcery, which enchanteth the spirits of young men, which beare great minds with a shew of honor in that which is no honor indeed, beeing against religion, law, morall vertue, and against the presidents and examples of the best times, and valiantest Nations of the world, which though they excelled for prowesse and millitary vertue in a publique quarrell, yet knew not what these priuate Duells ment: saying further, that there was too much way and countenance giuen vnto these Duells by the course that is held by noble-men and gentle-men in compounding of quarrells, who vse to stand too punctually vppon conceipts of satisfactions and distinctions, what is before hand and what behind hand, which doe but feed [Page] the humor; Adding likewise that it was no fortitude to shew vallour in a quarrell, except there were a iust and worthy ground of the quarell; but that it was weakenesse to sette a mans life at so meane a rate as to bestowe it vppon trifling occasions, which ought to bee rather offered vp and sacrificed to honourable seruices, publique merrits, good causes, and noble aduentures. And as concerning the Remedies, hee concluded: That the onely way was, that the State would declare a constant and settled resolution to master and put downe this presumption in priuate men, of what-soeuer degree of righting their owne wrongs, and this to doe at once; For that then euery perticuler man would think himselfe acquitted in his reputation, when that he shal see that the State [Page] takes his honor into their hands, and standeth betweene him and any Interest, or preiudice, which he might receiue in his reputation for obeying; wherevnto he added likewise, that the wisest and mildest way to suppresse these Duells was rather to punish in this Court all the acts of preparation, which did in any wise tend to the Duells, (as this of Challenges and the like) and so to preuent the Capitall punishment, and to vexe the roote in the branches, then to suffer them to run on to the execution, and then to punish them Capitally, after the maner of France, where of late times Gentlemen of great quality, that had killed others in Duell, were carried to the Gibbet with their woundes bleeding, least a naturall death should keepe them from the example of Iustice.

[Page]Thirdly his Maiesties said Atturney generall did by many reasons, which hee brought and alledged, free the Law of England from certaine vaine and childish exceptions, which are taken by these Duellists: The one, because the Law makes noe difference in punishment betweene an insidious and foule murther, and the killing of a man vppon Challenge and faire tearmes, as they call it, Th'other for that the Law hath not prouided sufficient punishment, and reparation for contumelie of wordes, as the lye, and the like: wherein his Maiesties said Atturney generall did shew, by many waighty arguments and examples: That the Law of England did consent with the Law of God, and the Law of Nations in both those pointes, and that this distinction in murther betweene [Page] foule and fayre, and this grounding of mortall quarrells vpon vnciuill and reproachfull words, or the like disgraces, was neuer authorised by any law, or ancient examples, but it is a late vanity crept in from the practise of the French, who themselues since haue beene so weary of it, as they haue beene forced to put it downe with all seuerity.

Fourthly, his Maiesties said Attourney Generall did prooue vnto the Court by rules of law and presidents; that this Court hath capacity to punish sending and accepting of Challenges, though they were neuer acted nor executed; taking for a ground infallible, that wheresoeuer an offence is capitall or matter of fellony, if it be acted and performed, there the conspiracy, combination, or practise [Page] tending to the same offence is punishable as a high misdemeanor, although they neuer were performed. And therefore that practise to impoyson though it tooke no effect, and the like, haue beene punished in this Court: and cyted the president in Garnons case, wherein a crime of a much inferiour nature, the suborning and preparing of witnesses though they neuer were deposed, or deposed nothing materiall, was censured in this Court, whereupon hee concluded, that forasmuch as euery appoyntment of the field is in law but a combination of plotting of a murther, howsoeuer men might guilde it: That therefore it was a case fit for the censure of this Court; and therein he vouched a president in the very point, that in a case betwene Wharton plantife and Elerker and [Page] Acklam, defendants. Acklam beeing a follower of Elerker had carried a challenge vnto Wharton, and although it were by word of mouth, and not by writing, yet it was seuerely sensured by the Court; the Decree hauing wordes, that such Chalenges doe tend to the subuersion of gouernment: And therefore his Maiesties Atturney willed the standerds by to take notice that it was noe innouation that he brought in, but a proceeding, according to former presidents of the Court, although he purposed to follow it more throughly then had been done euer heeretofore, because the times did more & more require it. Lastly, his Maieesties said Attorney generall did declare and publish to the Court in seuerall Articles his purpose and resolution in what cases hee did intend to prosecute offences of that nature in [Page] this Court, That is to say, That if any man shall appoynt the field, although the fight bee not acted or performed. If any man shall send any challenge in writing, or message of challenge: If any man shall carry or deliuer any writing or message of challenge, If any man shall accept or returne a challenge, If any man shall accept to bee a second in a challenge of eyther part: If any man shall depart the Realme with intention and agreement to performe the fight beyond the seas: If any man shall reuiue a quarrell by any scandalous bruites or writings cōtrary to a former Proclamation, published by his Maiesty in that behalfe, that in all these cases his Maiesties Atturney generall, in discharge of his duety by the fauour and assistance of his Maiesty and the Court, would bring the offenders [Page] of what state or degree soeuer to the iustice of this Court, leauing the Lords Cōmissioners Marshall to the more exact remedies, adding further, that hee heard there were certaine Councell learned of Duells, that tell yong men when they are before hand and when they are otherwise, and did incense and incite them to the Duell, and made an art of it, who likewise should not be forgotten, and so concluded with two petitions, the one in perticuler to the Lord Chancellor, that in case aduertisement were giuen of a purpose in any to goe beyond the seas to fight, there might bee granted his Maiesties writte of Né exeat regnum against him: And the other to the Lords in generall, that hee might bee assisted and countenanced in this seruice.

After which opening and declaration [Page] of the generall cause, his Maiesties said Atturney did proceed to set forth the proofes of this perticuler challendge and offence now in hand and brought to the iudgment and censure of this honorable Court; wherevpon it appeared to this honorable Court by the confession of the said defendant Priest himselfe, that hee hauing receiued some wrong and disgrace at the hands of one Hutchest, did thereupon in reuenge thereof writ a letter to the said Hutchest containing a challenge to fight with him at single rapier, which letter the said Priest did deliuer to the said defendant Wright, together with a sticke containing the length of the rapier, wherewith the said Priest ment to performe the fight; whervpon the said Wright did deliuer the said letter to the said Hutchest, and did read the same vnto him [Page] and after the reading thereof did also deliuer to the said Hutchest the saide sticke, saying, that the same was the length of the weapon mentioned in the saide Letter. But the saide Hutchest, (dutifully respecting the preseruation of his Maiesties peace) did refuse the said Challeng, wherby noe further mischeefe did ensue thereupon. This honorable Court, and all the honorable presence this day sitting, vpon graue and mature deliberation, pondering the qulality of these offences, they generally approued the spech and obseruations of his Maiesties saide Atturney generall, and highly commended his great care and good seruice in bringing a cause of this nature to publique punishment and example, and in professing a constant purpose to goe on in the like course with others; letting him knowe, that hee [Page] might expect from the Court all concurrence and assistance in so good a worke. And therevpon the Courte did by theire seuerall oppinions and sentences declare how much it imported the peace and prosperous estate of his Maiestie and his kingdome to nippe this practise and offence of Duells in the head, which now did ouerspread and grow vniuersall, euen among meane persons, aud was not onely entertayned in practise and custome, but was framed into a kinde of Art and Preceptes; so that according to the saying of the Scripture, Mischeefe is imagined like a lawe. And the Court with one consent did declare their opinions. That by the ancient law of the land al Inceptions, preparations, & combinatiōs to execute vnlawful acts, though they neuer be performed as they be not to be [Page] punished capitally, except it bee in case of treason, and some other perticuler 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 brauery and insolency of the times are such as the ordinary Magistrates and Iustices, that are trusted with the preseruation of the Peace, are not able to master and represse these offences, which were by the Court at large set forth, to bee not onely against the law of God, to whom, and his substitutes all reuenge belongeth as part of his prerogatiue, but also against the oath and duety of euery subiect vnto his Maiesty, for that the subiect doth sweare vnto him, by the ancient law, allegeance of life and member, whereby it is plainely inferred that [Page] the subiect hath no disposing power ouer himselfe of life and member to bee spent or ventured according to his owne passions and fancies, in-so-much as the very practise of Chiualry in Iusts and Turneys, which are but images of martiall actions, appeare by ancient presidents not to be lawfull without the Kings lycence obtained. The Court also noted, that these priuate Duells or Combats were of another nature from the Combats which haue beene allowed by the law aswell of this land as of other nations for the tryall of rightes or appeales. For that those Combats receiued rection & authority from the law, wheras these contrariwise spring only from the vnbrideled humors of priuate men. And as for the pretence of honor, the Court much misliking the confusion of degrees which is growne of late (euery man [Page] assuming vnto himself the tearme and attribute of honor) did vtterly reiect and condemne the opinion that the priuate Duell, in any person whatsoeuer, had any groundes of honor, aswell because nothing can be honorable that is not lawfull, and that it is no magnanimity or greatnes of mind, but a swelling & tumor of the minde, where there faileth a right and sound Iudgement; as also for that it was rather iustly to be esteemed a weaknes, and a conscience of smale value in a mans selfe to be deiected, so with a word or trifling disgrace as to thinke there is no recure of it, but by hazard of life, whereas true honour in persons that know their owne, worth is not of any such brittle substance but of a more strong composition. And finally, the Court shewing a firme and setled resolution to proceede with all seuerity [Page] against these Duells gaue warning to all young noble-men and gentlemen that they should not expect the like connyuence or tolleration as formerly haue beene, but that iustice should haue a full passage without protection or interruption; Adding that after a straight inhibition, whosoeuer should attempt a challenge or combatte, in case where the other party was restrayned to answere him (as now all good subiects are) did by their owne principles receiue the dishonor and disgrace vppon himselfe. And for the present cause, The Court hath ordered, adiudged, and decreed, that the said William Priest, and Richard Wright, bee committed to the prison of the Fleete, and the said Priest to pay fiue hundred pound, and the said Wright fiue hundred [Page] markes for their seuerall Fines to his Maiesties vse. And to the end that some more publique example may bee made heereof amongst his Maiesties people, The Court hath further ordered and decreed, That the said Priest and Wright shall at the next Assises to bee houlden in the County of Surrey publiquely in face of the Court, the Iudges sitting, acknowledge their high contempt and offence against God, his Maiesty, and his lawes, and shew themselues penitent for the same. Moreouer the wisdome of this high and honourable Court thought it meete and necessary that all sorts of his Maiesties subiects should vnderstand and take notice of that which hath beene said and handled this day touching this matter, aswell by his highnesse Atturney generall, as by [Page] the Lords, Iudges, touching the law in such cases. And therefore the Court hath enioyned Maister Atturney to haue speciall care to the penning of this decree, for the setting forth in the same summarily the matters and reasons which haue beene opened and deliuered by the Court touching the same, and neuer-the-lesse also at some time conuenient to publish the perticulers of his speeche and declaration, as very meete and worthy to bee remembred, and made known to the world, as these times are: And this decree, being in such sort carefully drawne & penned, the whole Court thought it meete, and so haue ordered and decreed, that the same bee not onely read and published at the next Assises for Surrey at such time as the said Priest and Wright are to acknowledge [Page] their offences as aforesaid; But that the same be likewise published and made knowne in all Shires of this Kingdome. And to that end the Iustices of Assize are required by this honorable Court to cause this decree to bee solemnly read and published in all the places and sittings of their seuerall Circuits, and in the greatest assembly, to the end that all his Maiesties subiects may take knowledge and vnderstand the opinion of this honorable Court in this case, and in what measure, his Maiesty, and this honorable Court purposeth to punish such as shall fall into the like contempt and offences hereafter. Lastly this honorable Court, much approuing that which the right honorable Sir Edward Coke knight, Lord Chiefe Iustice of England did now deliuer touching the [Page] law in this case of Duells, hath enioyned his Lordship to report the same in print, as hee hath formerly done diuers other Cases, that, such as vnderstand not the law in that behalfe, and all others may better direct themselues, and preuent the danger thereof hereafter.

FINIS.

Information about this book

Title statement

The charge of Sir Francis Bacon Knight, his Maiesties Attourney generall, touching duells vpon an information in the Star-chamber against Priest and Wright. With the decree of the Star-chamber in the same cause.

Bacon, Francis, 1561-1626.

Edition statement

1614

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Text Creation Partnership,

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Date

2003-01 (EEBO-TCP Phase 1).

ID [DLPS]

A01138

ID [STC]

STC 1125

ID [STC]

ESTC S121055

ID [EEBO-CITATION]

99856244

ID [PROQUEST]

99856244

ID [VID]

21773

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(EEBO-TCP ; phase 1, no. A01138)

Transcribed from: (Early English Books Online ; image set 21773)

Images scanned from microfilm: (Early English books, 1475-1640 ; 618:1)

Source

— The charge of Sir Francis Bacon Knight, his Maiesties Attourney generall, touching duells vpon an information in the Star-chamber against Priest and Wright. With the decree of the Star-chamber in the same cause., Bacon, Francis, 1561-1626., England and Wales. Court of Star Chamber..

Extent

61, [3] p.

Printed [by George Eld] for Robert Wilson, and are to be sold [by Robert Wilson and W. Bladen] at Graies Inne Gate, and in Paules Churchyard at the signe of the Bible,. [London] :: 1614.. (Printer's and booksellers' names from STC and addendum.) (The first leaf and the last leaf are blank.) (Reproduction of the original in Cambridge University Library.)

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