rule by private direction, for which there is no law, how can he be questioned by a law, if in his private censure he offends?

5. Therefore, it seemeth that, in giving such authority, the king ordaineth not subordinate magistrates, but absolute kings: and what doth the king leave to himself, who giveth so much to others, as he hath himself? Neither is there a greater bond to tie the subject to his prince in particular, than when he shall have recourse unto him, in his person, or in his power, for relief of the wrongs which from private men be offered; or for reformation of the oppressions which any subordinate magistrate shall impose upon the people. There can be no offence in the judge, who hath power to execute according to his discretion, when the discretion of any judge shall be thought fit to be limited, and therefore there can be therein no reformation; whereby the king in this useth no prerogative to gain his subjects' right: then the subject is bound to suffer helpless wrong; and the discontent of the people is cast

upon the king; the laws being neglected, which, with their equity, in all other causes and judg ments, saving this, interpose themselves and yield remedy.

6. And, to conclude, custom cannot confirm that which is any ways unreasonable of itself. Wisdom will not allow that which is many ways dangerous, and no ways profitable. Justice will not approve that government, where it cannot be but wrong must be committed. Neither can there be any rule by which to try it, nor means of reformation of it.

7. Therefore, whosoever desireth government must seek such as he is capable of, not such as seemeth to himself most easy to execute; for it is apparent, that it is easy to him that knoweth not law nor justice, to rule as he listeth, his will never wanting a power to itself: but it is safe and blameless, both for the judge and people, and honour to the king, that judges be appointed who know the law, and that they be limited to govern according to the law.

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 showed 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 passes not amiss sometimes in government, that the greater sort be adinonished 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 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

Therefore, before I come to the particular, whereof your lordships are now to judge, I think it time best spent to speak somewhat:

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

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 assistance.

For the mischief itself, it may please your lordships to take into your consideration that when revenge is once extorted out of the magistrates' 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, 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 al 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 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 "aurora filii," sons of the morning,

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 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 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 show you 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 disesteem of a man's self, to put a man's life upon such liedger 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 is it fortitude to make effusion of blood, except the cause be of worth. And thus much for the causes 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 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 cace, 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 was set down in express words in the edict of Charles IX. of France, touching duels, that the king himself took upon him the honour 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 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 martial 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 beforehand, 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 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 VOL. II.-38

that darkness, that he may not behold his sove reign'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 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 case of 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