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A11870 The duello or single combat from antiquitie deriued into this kingdome of England, with seuerall kindes, and ceremonious formes thereof from good authority described. Selden, John, 1584-1654. 1610 (1610) STC 22171; ESTC S117105 31,538 62

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consuetudines praelij Constabularius vendicaret equum si limites fuisset ingressus sed nil sibi valet astutia sua nam equus iuxta list as discurrens aliquoties totum caput et pectus iniecit vltra limites Ob quam causam Constabularius Thomas de Woodstock equum vendicauit iurans se velle caput eius habere viz. quantum inter listas de equo visum fuit vnde adiudicatus est ei equus The Esquire entring the lists on foote the constable Marshall produce a certaine Indenture made before them by consent of the parties conteining the articles of the accusation which were there publiquely read Catrington began to offer exception at some of them thereby thinking to haue some-what extenuated the blottes laide on him But the Duke of Lancaster seeing him in delayes with an oath openly menaced him that vnlesse according to the Duello-lawes hee would admitte all in the indenture which was drawne by his assent as free from beeing taxt for insufficiency of forme hee should bee presently drawne and hanged as a traitor Wherevpon the Squire ceased from his exceptions and entended onely the Combat Sir Iohn Ansley provt moris est saith Walsingham and after him this Catrington tooke oath of the truth of his cause that hee was free from all vse of Art Magique that he did not carry with him any hearbe stone or other kinde of experiment of Witchcra●t as hoping thereby for victory The Combat it selfe followes betweene them First Launces then Swords afterwards Fauchions are their weapons The Squire had still the worst euen vntill Ansley although with some hazard and doubt as you may see in the Author got the adiudged victory Some fiue yeares after vpon iudgment of the Annal. Stouaei fol. 477. Parliament then holden a Combat was fought betweene one Mortileto de Vilenos a Nauarrois appellant and an English Esquire called Iohn Walsh defendant the accusation was of treason but the truth was that the chiefe motiue of Mortileto's quarrell as him-selfe afterwards ouercome confessed was a former discouered close combat betweene his wife and the Squire But long since Mars him-selfe was in that fault Ob quam causam sai●h Walsingham idem Nauarrus VValsingham 7. Rich. 2. fest Martini fol. 311. Edit Camdeni regali iudicio qui ad spectaculum duelli cum principibus regni sui consederat tractus suspensus est Although the Queene and diuerse others very earnestly entreated his pardon The appointed lists for the determination of that great quarrell twixt Henry Duke of Hereford Jd●m ann 23 Rich. 2. fol. 356 and Thomas Mowbray of Norfolke vpon imputation of some reprochfull termes vsed against the King by Mowbray is because of the great consequent of Crowne-conuersion thence following in euery mans mouth famous Yet in respect of the particulers thereof well as all things else compiled by the author of the life and raigne of 1. Heyward in vita Henrici quarti pag. 45. Henry the fourth it deserues there the reading whither I referre you Iohn Vpton vnder Henry the sixt appealed Iohn 8. Hen. 6. Annal Stouaei fol. 609. Downe that hee with his complices had imagined the Kings death on the day of Coronation Richard Duke of Yorke vpon absence of Iohn Duke of Bedford Regent of France for this purpose constituted high Constable of England The battell twixt them was fought in Smithfield where when they had long fought the King saith Iohn Stow tooke vp the matter and forgaue both parties Iohn Dauid falsely appealed his maister William Idem pag. 635 ann 25. Hen. 6 Catur an armorer in Fleete-streete of Treason the battell waged the place appointed in Smithfield Catur was so merry with his friends before the Combat that when hee had most cause of circumspect obseruation an Icarian shadow so darkned his eye-sight and weakned his forces that hee was vnluckely there by his most offending seruant ouer-come and slaine Out of these examples may bee gathered some particulers of our Duello-ceremonies not to bee neglected But because a difference appeares twixt the iurisdiction here discouered and that in the former examples collected from our lawannalls and old writers separate disquisition shall endeuour reconciliation Who are the Iudges and haue Iurisdiction of the Combat Chap. 10. BRacton and Britton in their inserted treatises of the Combat speake onely of the Kings Iustices which you must in criminall causes vnderstand of the Kings Bench with them agrees Glanuill in these words Ex quo fuerit duellum vadiatum Glanuil lib. 14 cap. 1. non alio modo nisi de licentia domini Regis vel eius Iusticiariorū de caetero possunt sibi ad invicem reconciliari speaking expresly of an appeale of Treason But in a Terme booke of Henry the sixt two learned Lawyers affirme that the Iudges before M. 37. Hen. 6. fol. 3. ●0 whom the Combat is determinable are the Constable and Marshall of England which are to order it by the law of armes concording are the historical presidents next before recited Yet vpon obseruation of all this seeming contrary testimony the Truth will be thus apparant That when the Appeale is vpon matter disgracefull or dishonorable to nobility or the accusation in such forme of termes place as cannot be sufficient ground of an Appeale by Common-law course as when the matter I speake especially of Criminalls or armory is not emergent within the Realme then if the Combat bee challenged the Naturall Iudges are those two Noble Officers the high Constable and Marshall of England to whome belong from Antiquity a Court called le Court de Chiualry ad lites honorartas as a late writer Mill. de nobilit politic pag. 154. saith discutiendas iusque suum cuique famae vel dignitatis tribuendum For this I haue Iudge Prisots words For calling another false c. No appeale saith hee lyes in our law and by consequence no such defence viz. by proofe on body may bee for such matter belongs to the Constable and Marshall and they shall determine this by the lawe Ciuill Where-vnto Nedham replyes that it is le ley del terre le ley nostre seignior le roy This is infalliby confirmed by the act of 13. Richard the second touching the Constables power Al Constable appertient d'auer conusance des contracts touchants faits d'armes du guerre hors de Realme Et ainsi des choses queux touchent armes ou guerre deins le royalme queux ne poyent estre Stat. 13. Rich. 2. cap. 2. vide insuper stat 1. Hen. 4. cap. 14. 30. Hen. 6. fol. 5. 6. Hen. 8. Kel 171. termines ne discusses per le commen ley oue auters vsages Customes a ycelles mattiers appertenants queux auters Constables Deuant ore ont duement resonablemant vses en leur temps adioustant a icel que chescun pleintife declara pleniment sa matter en son petition auant que soit enuoy pur ascun