all Saxo Grammatic hist. Daniae ib. 5. 10. controuersies tooke this for their touchstone vntill such time as King Poppo a Christian thinking wronged Vulcan to be a better iudge then wrounging Mars by new iuduction of the Fiery Ordell made thereof abrogation After the Gothique Martin del Rio dâ—sq Magi. lib. 4. q. 4. sec. 2 irruptions into the Empire and the Lumbards power and customes enlarged the rest not without the allowance of one of the Pope Iohns of Germany France and Spaine not in Criminall onely but also in Ciuill causes haue admittance of it Bodin de repub lib 4. cap. 7. ex lâ—gibus â—â—â—go bard and howsoeuer Rhotaris a Lumbard King once prohibited it yet he was constrained afterwards to restore it But for the most part the Church of Rome hath impugned it with her authority Pope Nicholas the first forbad the Emperor Lothar to try his wiues suspected chastity by the appointed Caus. 2. quest 5 c. 22. monomachiam Decret tiâ— de vulgari purgatione Concil Trident sess 9. can 19. ps 2. combat of two elected dhampions cum hoc so he wrot hâ—iusmodi sectantes Deum solum modò tentare videantur so did Celestine the third and other Bishops of that Sea last of all thus thunders the councel of Trent Imperator Reges Duces Principes Marchiones Comites quocunque alio nomine Domini temporales qui locum ad Monomachiam in terris suis inter Christianos concesserint eo ipso sint excommunicati ac iurisdictione dominio ciuitatis castri aut loci in quo vel apud quem duellum fieri permise rint quod ab eclesia obtineÌ„t priuati intelligantur si feudalia sint directis Dominis statim acquiraÌ„tur Qui verò pugnam commisserint qui eorum patrini vo cantur excoÌ„municationis omnium bonorum suoruÌ„ proscriptionis perpetuae infamiae paenam incurrant vt homicidae iuxta sacros canones puniri debent si in ipso conflictu decesserint perpetuó careant ecclesiasticâ sepulturâ Illi etiam qui consilium in causa Duelli tam in iure quam facto dederint aut alia quacunque ratione ad id quenquaÌ„ suaserint nec non spectatores excommunicationis ac perpetuo maledictionis vinculo teneantur Non obstante quocunque priuilegio seu praua consuetudine etiam immemorabili To those which were the obseruant sonnes of the Roman Church this and the other decrees extend their inhibitions But the English customes neuer permitted them-selues to be subiected to such Clergy-canons alwaies vnder parliament correction retaining as what-so-euer V. Smith lib 2 de â—â—p Anglorum cap. 7. they haue by long vse or allowance approued so this of the Duell which how it first came into this Kingdome stands next to bee inquired Whence England receiued it if from the Normans Chap. 6. I Thinke it not easy to proue this custome in EnglaÌ„d before the Norman conquest yet it appeares y â— the ancient GermaÌ„s who were the fathers of the English made some vse of it and Verstegan in his Verstegan pag. 64. 300. chapter of the old manner of liuing of the Saxons out of good authority numbers his Kamp-fight whence comes our English names of Kemp and Campion for a Combat-fighter among the foure Ordells which then purged or condemned as mute iudges Ad de herevnto the iudgement of Guil le Rouille Alenconiensis in praefat â le graund Cust. du Normandy William Rouille d' Alenson in his Preface to the old graund Custumier du Normandie making the Norman customes among which the Duell is one to owe their originall to England rather then the English to Normandy His words because they Atqui lector adeas fi de his consulas Rogerum de Houeden in 2. part annalâ—um fol. 346. seq G. insuper CamdenuÌ„ Lambardum in explic verb. nouissi nê quae sunt ab honoratissimo J. C. tissimo V. D. Ed. Coke Eq. aurato priuatorum iudicioruÌ„ praetoâ—â— summo ad terâ—ium lâ—bruÌ„ responsorum edita maxime quae ab iâ—sde e â—eruâ—sio Tilburiensi trâ—â—scrâ—buÌ„â—ur touch the generality of our common lawes shall not be left without a roome here At huiusce Normannicae consuetudinis speaking of the whole Custumary latorem siue â—atorem S. Edwardum Angliae regem testatur vulgaris illa Cronica quae Cronica Cronicorum intitulatur vbi de Gulielmo Bastardo Normannorum Duce alias Anglorum rege loquitur dicens quod cum praedictus S. Edwardus ex se liberos heredes nullos haberet Guilielmum regni heredem instituit qui deuicto mortuo Haroldo regni vsurpatore hac conditione regno liberè potitus est vt scilicet leges prius a praefato Edwardo latas seruaret qui quidem Edwardus leges etiam Normannis dederat etiam cum Normannia diu fuisset enutritus But all this perswadeth not such Antiquity of the English Duell The old Saxon lawes of Alfred Edward Athelstane Edmund Edgar or others of those times are silent of any such matter Nor as I remember haue the Monkish stories of that age any authority for proofe of it Onely in William of Malmesbury relation is made of a combat fought and a champion slaine vpon proofe of Malmesbur de gest reg li 2 cap 12. the by-insimulation-wronged chastity of Gunhilda daughter to Hardknot and wife to Henry the third of Germanie but this was out of the English territory wherefore although the one part was English nothing to our purpose is hence gathered Leg. Guil. Coq apud Lamb. fol. 125. But in the lawes of VVilliam the first it is decreed that if a French-man appeale an Englishman of periury murder theft mans-slaughter or robbery Anglus se defendat per quod melius voluerit aut iudicio ferri * Ferri nimirum igniti cuius formam explicatissime babes in Antiq. Eccles. Brit. in Lamb. expli verb. aut Duello It rests therefore that wee admit that the Normans alias North mans being by their first ofspring from the Norwegian coast where this custome as before is shewed had his breeding were the first authors of it in this their conquered kingdome The diuision of the Duell iudiciall as of iudgements the forme out of the Common law till the lists intred with authority and examples of the Criminall Duell Chap. 7. GEnerally it being thus from the antients brought into England what followes of it also shal be within England chiefely confined As Cicer in orat pro Cecinna the diuision of iudgements is bipartite consisting eyther in punishment of misdeedes committed against the body of the state or determination of controuersies touching onely particular persons which in fewest wordes is expressed by Publike and Priuate Criminall and Ciuill so if the Tryall may be denominated from the iudgement the same distinction may bee admitted in the Duell to bee eyther Criminall or Ciuil Criminall beeing waged for purgation of
home a responder a icell Thus vpon due conference of the former examples with these opinions and statute lawes together with some later credit-deseruing authority Lambard in 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Fernoeus in lib. de nobilitatis gloria pag. 312. cum 5. Mar. â—it Battell 15. of W. Lambards Archion yet vnprinted and other tradition of proofe our old Customes and new and both with historicall relation may be easily made to symbolize Touching the Antiquity and name of the high Constable and Marshall which in the proposed subiect is to bee inquired after seeing that by some kinde of good authority I finde that all tryalls in their court except discussion ex bono aequo were by the a Vide verò Th. VValsingham p. 357. 1. Heyward in vitâ— Henrici 4 pag. 92. arâ—ic 26. neâ—non Fernaeum lib. de nobil gloriâ pag. 315. Duell as in the Articles obiected against Richard the 2. at his deposition is expressed I confesse I haue not read any thing more auncient then the Continuance of Florence of Worcester his Chronicle which in the raigne Continuat ad FloreÌ„nt VVigorn ann 4. Steph. pag. 532 of King Stephen thus reports Regij Constabulatus honorem Miloni Glocestrensi who was Earle of Hereford created by Maude the Empresse suo hosti ablatum Guilielmo filio Walteri de bello Campo Wigorniensi Vicecomiti dedit But vpon that credit which a good b Lambard in 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 De familijs quae honoratissimo insignes fueruÌ„t isto titulo seu officio consulas G. Camden in Comit. Essexiae Heresordiae ac etiam in prouinciâ— Monumethensi addas 6. Hen. 8. Kâ—l fol. 171. Mill. de nob pol. pag. 151. Antiquary of right claimes to him-selfe I am perswaded that some officer of the Constables nature in respect that Battell entred with the Normans as aunciently also administred this Iustice as it may saith my Author well appeare not onely by some records of history but also by a speciall president that I haue seene concerning the whole order of proceeding in that behalfe before him Of his name to leaue the seuerall formes of deriuation by diuers authors which you haue both collected censured by Iulius Pacius in his notes Pacius in notis ad curopal ad pag 62. ver 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 vpon Curopalata the iudgement of Iohannes Goropius Becanus and Richard Verstegan hauing therein diuers followers is thus That Cyning being contracted in King and Stable or Staple signifying a prop or stay the whole word Constable is as much Versteg pag. 324. Lips Epist. cent 3. epist. 43. Paul Meâ—ula in cosmog. part 2 lib 3 cap. 15. Uide Paulum Diaconum li. 2. cap 9. de gist Longobardoriâ— et ad cum anno tationes nouisimas Anonymi Curopalat cum annot 1 Pacij ad pag. 52. ver 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as Columen Regis or one that hee especially depends vpon in the managing of his most weighty affaires The name of Marshall or Marescall is agreed to discend from two Teutonique words which was the same with the old French Mare which signified as much as our generall name of horse and Scalck that in the old German and Gothique tongue signified a seruant As one out of Simeons song in the haÌ„ds of that great linguist Ioseph Scaliger hath after others affirmation of as much lately obserued Fra leitais scalk theinana 1. Now lettest thou thy seruant depart although Pacius turneth schalk 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or peritus so that Mareschall with vs and the French is in notation but Smith in Dutch and English Marphais among the old Lumbards Protostrator in the Easterne Empire expressed if you will in Latine Equorum Versteg pag 324 Curator whereby as Verstegan noteth we may perceaue how names growne to high dignity haue sometimes taken their originall from inferior vocations The forme of obtaining cleere proceeding and performing the Combat by the ancient law of armes in the English Court of Chiualry Cap. 11. ALthough not with best-seeming method yet with most compendious for narrowest order in comprehension thus farre is discouered what in briefe termes is thus connexed That of Iudicial Combats Criminal some are for triall of a particular obiected misdeed against which the Common lawe by ordinary course proceedes and of these the iustices of the Kings bench haue Caeterum actis Parliamentariis de 35. H 8. de crimine laesae maiestatis trans mare coÌ„misso cognoscunt Iudices a Rege delegati c. the disposition as is declared others for purgation of offence against military honour and transmarine treasons remedylesse by the old Custome of England which the high Court of Chiualry is to marshall by the lawe of armes The manner of this both in proceeding execution is much different from the other therefore of it by it selfe briefly thus A Chartel contayning the accusation is exhibited to the iudges of Chiualry for demaund of the Combat if the Apellant make choyce of a Martiall tryall the demaund is comprehended in the conclusion That hee is ready to maintaine the same by his body Truth of the Chartell and freedome of the Apellant from all purpose of malicious wrong is by his oath confirmed The combat vpon due consideration of circumstances graunted denunciation of challenge contayning the whole chartell by officers of armes which was wont to bee by some priuat persons is sent to the accused If vpon the pro cesse hee bee returned not found then the chal lenge is published in his territories by the person as religiously to be obserued of an Herehault Hereof at his perill he takes notice and vpon default Beuther conclâ— 56. Mutio Iustinopolitano del Duello lib. 1. ca. 16 after sixe monthes which is the time of instance for the appellants proceedingâ— is adiudged guilty But if vpon receit of the chartell of challenge he appeare not the Iudge may brand him with a note of dishonour hereby purchased of which but onely by vndergoing a new challenge as actor he can neuer be clensed or may vnder paine of taking it for a confession denounce Ex iustâ causâ per Campionem se tuâ—tur Reus Alciat cap. 36. Beuth. conc 40 a new time of defence or further vpon losse of his coate armour compell him If hee appeare and make his defence but on the Duell day his aduersary being there present till sunne-set and proclamations of demaund made at noone and night which is peremptory and finall without iust cause hide his head it is sufficient conuiction and without all hope of restitution is his honor attainted wherevpon saith Alciat some appellants carrie the pictures of such dastards about them with exprobration or their coate-armour reuersed or ignominiously fastened vnder their horses tayle or with such like disgrace If hee stand to his defence at the appointed time and place which by an old constitution of Frederick are Alciat cap. 6. Beuther concl
DVELLO or Single Combat From Antiquitie deriued into this Kingdome of England with seuerall kindes and ceremonious formes thereof from good authority described 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 LONDON Printed by G. E. for I. Helme and are to be sold at his shop in Saint Dunstans Church-yard in Fleet-streete 1610. V. CLARISSIMO D. EDWARDO CARRELL ab Harting EQVITI AVRATO DICAT MONVMENTVM ET PIGNVS AMORIS J. S. TO THE READER ΕΥΦΗΜΕΙΠREader I open not a Fence-schoole nor shall you heere learne the skill of an encounter or aduantagiously in the lists to trauerse your ground Historicall tradition of vse and succinct description of ceremony are my ends both deduced from the Auncients Heraclides Ponticus but without proselenique affectation My aymes shall take him for an aduocate which long since affirmed the full pleasing Syrens to bee but allegories of antique Records indeed I thinke his speech was beyond his proofe but the God of Poets could not with-out 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 expresse the best of his Phaeaces Echeneus in Odyss 〈◊〉 And I dare avâ—w it hee which distasts true primordiall deduction falls often into that couert dotage of Errabo potius quam perductet quispiam Plaut in Moâ—icll Auncient writ is the leader in what passages I haue drawne all beeing but as an Epocha from whence the single and simple motions of our Triplicity-Lord Mars are ommitting their effests and temperea influences with their differences calculated Censure as Terent. in Pâ—â—r you please but howsoeuer like old Demipho's Lawyers so at worst 〈◊〉 doubt not will my Readers With this comfort I regard all thumb-turning and feare not the truly iudicious Best of the supreme aspects bestow their raies on you From the I. Temple this x. of Decemb. CIODCIX CAPITVLORVM ELENCHVS 1. The name and notation of the Duello cap. 1. 2. Of Extraiudiciall Duells That for contracting the aduenture of a greater warre into a lesse number it hath bene by the Aunciens vsed and by the Iudicious without controuersie allowed cap. 2. 3. For proofe of Manhood also in diuers formes and vppon seuerall occasions vse of it is found both in the monuments of inmost antiquity as also in the later ages and alwaies for this purpose as dedicated to Honour and by the Princes authority cap. 3. 4. A light touch of single Combats extraiudiciall vpon quarrels according to some that authentiquely treat of them and especially of English and French Custome cap. 4. 5. First authors of the Iudiciall Duell where admitted the Church of Romes inhibitions against it cap. 5. 6. Whence England receiued it if from the Normans cap. 6. 7. The diuision of the Duell iudiciall as of iudgements the forme of the Criminal Duell by the common law till the sists entered cap. 7. 8. What Weapons or armour is to bee vsed by like testimony onely the Successe of the Combate and thereon Iudgement cap. 8. 9. A collection of diuers examples out of the English histories of combats touching defence of imposed crimes with some particulers of their reported formes and euents chap. 9. 10. VVho are the Iudges and haue iurisdiction of the combate cap. 10. 11. The forme of obtaining cleere proceeding and performing the Combate by authority of the law of armes in the Court of Chiualry and that in England cap. 11. 12. Priuate wrongs determined by the Duell and they eyther touching armes and gentry or right of land-inheritance cap. 12. 13 Combate vpon Right of inheritance in land possessions how granted prepared determined with iudgement on them and a recapitulating conclusion cap. 13. The name and notation of the DVELLO CHAP. 1. THe name for the true notation of the subiect is in no treatise to bee neglected but the very auspicy of letter-labour by logicke doctrine is thence to bee taken of the Duello or Duellum is after some quasi duorum bellum while others iudge that this deriuation stands rather conceited vpon the affinity of similary sound in pronunciation then true criticisme Authentique writers of the Latine haue Duellum vnlimited in number and of equall large signification Horat. epist. lib. 1. ep 2. Liu. lib. 1. with Bellum Graecia Barbariae lento collisa Duello hath Horace and likewise in Liuy puro pioque Duello quaerendas res censeo saith one of the Senators vpon his aduise to Ancus Martius Perduellis also in old Ennius keepes like ranke with Hostis Perduellum duellum bellum being vpon learned Varro's testimony and in Plautus but synonomyes Varro de ling. lat lib. 6. Plaut in Amphitryone Fest. in verb. Duellum Du. apud antiquos saepius in B. transiit quod vide apud P. MerulaÌ„ ad lib. 1. annal Ennii as Duellona and Bellona To al these agreeeth Festus deriuing it quod duabus partibus de victoria contendentibus dimicatur referring it to the contrary termes of a generall quarrel not to that single opposition which the French cal Combate seul a seul the old Saxons Kamp-fight our English single-fight fully and significantly exprest in the Greeke 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 vnder breath of one word But as many well imposed names feele the diuers effects of time and customes syllabique alteration from the first nature of their genuine roote in so much that great Plato durst onely finde fault with not correct the crept-in errors of that nature Plat. in Cratylo in his time so questionlesse whole applications of names to their now reputed subiects haue beene often times very disorderly made yet too currantly admitted by the quiet approbation of posterity And Etymologists ayming at the conioyned nature of the word and thing signified as commonly misse as hit their marke Iustinians Instit. tit de leg sect siquideÌ„ in nomine rule vpon the mistaken name of a legatary being but in one word altered shall free mee from further inquisition of needlesse respect to bare names Nomina significandarum * Hominum in ipso textu rerum gratiâ repertasunt quae si alio quolibet modo intelligantur nihil interest saith the Emperor Truth and the application of this word Duellum to single fight haue had both one father especially in this Kingdome where time both establisheth and abrogateth It were therefore iniury in mee to offer cause of breach to their sister-hood or to bastard the one times hoary age being contrary to and far from all iust imputation of naturall weaknesse The Duello then you may vse at your pleasure any of the other names is the bodily opposition of two combatants both ayming at victorious successe Other and diuerse are the definitions of it among Ciuilians which for the most part call it not Pugna duorum but duarum partium citra formam belli dimicantium as vpon the example of the Horatij and Curiatij in the Romaine historie which exceeded vnity on both sides Doctor Beuther Beuther disp de duel concl 1 concludes His definition is the last as I take
an imputed Crime Ciuill when for deciding of controuersie touching priuate wronges or interests Particularly for the first the offences which are comprehended vnder the name of felony which is Capitall of Treason when appeales of Treason were admitted Murder Robery or such like haue from ancient time in Appeales beene tryable at the Defendants pleasure by the Duell Accusato sayth Ranulph of Glanuill Cheefe Glanuil lib. â—4 cap. 1. Iustice vnder Henry the 2 per omnia in curiâ legitimé negante tunc per Duellum solet placitum terminari Henry of Bracton habebit electionem Brâ—ct lib. 3. trâ—ct de coronâ— cap. 21. vtrum se ponere velit super patriam vel non vel defendendi se per corpus suum to which Britton and Britton cap. de appeales the course of the common lawes accord VVhen the Defendant hath made choyce of this purgation or tryall presently according to those Auncients so that exception intercede not surety is giuen on both partes on the Defendants for performing his defence by his body on the Appellants for deraigning the battell where-vppon day is giuen by the Court for prouision of their martiall accout rements and arraying them-selues in conuenient armes the Defendant continually remayning in safe custody At the day prefixt both parties prepared and appearing in Court the Apellant recites his appeale and the Defendant his former defence verbatim as at the first Then the one takes the other by the hand and the defendant with an oath thus prepares his stomacke to the field This heare you whome I holde by the hand which say you are called by the Christian name of Iohn that I Pâ—ter such a yeare such a day and place as is expressed in the Appeale did not feloniously cause nor compasse the death if the appeale bee of murder of Thomas your father brother or c. nor did to this felony assent as you haue before supposed so GOD shall mee helpe and the Saintes To which the Appellant replies This heare you whome I hold by the hand which say you are called by the Christian name of Peter that you are forsworne and therefore for sworne because such a yeare such a day and in such a place you did felloniously with mallice prepensed with such a kinde of weapon giue a deadly wound in such a place of the body of Thomas my father whereby hee dyed within one houre after as I haue before said against you so helpe mee God and the Saintes These oathes in effect are composed of the somewhat different formes in Bracton and Britton but as agreeing to both onely thus much is the diuersity Bracton addes at the close of the first Nec tu hoc vidisti and to answer it the appellant thus encounters him ego vidi which Britton hath not The reason seemes because that after Hen. the 3. his time wherein Bracton wrote the Statute of Westmin the 1. in taking away VVest 1. cap. 41. that particle of Champions oathes in tryall of priuate rightes was as I thinke by equity extended vnto appeales also as ensuing presidents offer perswasion In this forme by my former authority their mutual oathes taken the defendant is committed to the custody of two Knightes or men of meaner fashion secundâ—m quod appellatus nobilis fuerit persona vel ignobilis who must conduct him vnto the listes appointed and ordered by the Marshall at commaundement of the Iudges so likewise is the appellant ordered and both restrained from speach with any except their Knightes and the Iustices who before the battell receiue seuerall oathes of them in this forme This Heare you Iustices that I Peter haue neyther eaten nor dranke nor any other thing done or caused for mee to bee done whence GODS lawe might bee depressed and the Diuels aduanced so helpe mee GOD. Et issint sayth Iohn Britton soit fait En toutes les battailes de felony Immediately followes the Kings proclamation that no man bee so hardy or bold other then the Combatants whatsoeuer hee see or heare asto moue or speake loud whereby any disturbance may happen to the battell vnder paine of a yeare and a dayes imprisonment Thus stand the Combatans ready in the listes as they are by those auncient Writers marshalled But before their battell to auoyd error in the proceeding because some differences appeare an example or two of later times in Our Common lawe Annalls is to be obserued One Adam vnder Ed. 3. brought an appeale Hill 17. Ed. 3. â—ol 2. lib. ass pl. 1. for the death of his father against one Iohn who waged battell in this forme With his left hand he tooke Adam by the right and laying his owne right hand on a booke swore the oath before rehearsed which é conuerso was seconded by the Appellant the first concluding and this I will defend against you by my body as this Court shal award The other And this I shal deraisne vpon you by my body according as this Court shâ—ll award Two main-pernours body for body were taken for the Appellants performance on the 3. day following the Defendant committed to the Marshall with charge to haue him ready armed on the same day also the costs of all imposed on the parties All this was at the first appearance and pleading and differs from Bracton especially in that point as also the next following In Henry the fourth in an appeale of Robbery the Defendant pleads not guilty and this was M. 9. Hen. 4. sol 4. StaÌ„ford lib. 3. cap. 14. ready to defend by his body the Appellant accepts it and vppon this hee was commaunded by the Court to take the left hand of the Defendant in his owne right hand and tooke the oath with conclusion of As GOD mee helpe and his Saints of Paradise his aduersary in like forme swore the contrary The Appellant found two pledges for the battell the time appointed and place in Tuthill fieldes The defendant committed to the Marshals custody Charge giuen to the Apellant that the night before the battellday hee should repaire to the Marshall to bee arrayed so that hee might bee in the field by the sunne rising of the same day to both to bee then ready to performe their deuoires Here is another dâ—fference in a Consuetudines Norm cap. 68. id ipsum quod superiâ—res illi â—t anti quiores habeÌ„t priority of taking the oath by the Apellant but the substance of all agree and offer of reconciliation of such differences without diuersities were losse of labour Hitherto not passing the limits of common-law-writ touching the Courts ordering the preamble to this Criminall Combat The Combatants are in the lists wee will now take view of their armour and weapons while they resting prolong their owne quiet and anon obserue some-what their performance VVhat Weapons or Armour is to be vsed by like testimony only the successe of the Combat and thervppon iudgement Cap. 8 IF you inquire what weapons and
armour is fittest generally for Combatants vse among Marc de la Ber. part 1. câ—p 20. 21. Alciat de sing certaÌ„ cap. 39. Brit. cap. 23. others most especially the great Lawyer Alciat and a very late Writer of France Messiere Marc de la Beraudiere disputing it may resolue you I search not what indefinitly ought to be but what with vs in England They are to fight saith Britton their heades vncouered handes and feete naked with two bastons tipt wiâ—h horne of one length and euery of them a quadranguler shield without other weapon â—ont nul ne puisse auter greiuer Of their bare hand-fight it might bee doubted vpon an old president vnder Edward P. 1â— Ed. 2. Coron 385. Vide infra cap. 13. the second where the Defendant cast his gloue into the Court vpon the challenge and vppon good cause of exception the Iudge bids the Apellant Then refuse the gloue Where hee seemes in that admittance to allow it as for a Combatants wearing but haec soluat Apollo Of bastoÌ„s sheilds that is Fustes scuta y e old law of Alciat cap. 39. the Lumbards gaue first vse the expres words of the NormaÌ„ Custumary are qu' ils ne puuent auoir aâ—tre instrument agreiuer l'ung l'autre fo rs l'escu le baston Vppon which wordes in respect of their identity with the English vsage the ordinary Cust. Norm cap. 68. l'ordinaire glosse sur câ—o glose is worthy of obseruation thus it speakes Ce text ne parle ne sâ—entend quant a le declaracion des armeures si non au regard des non nobles Et si on demandoit purquoy la text ne desclaire la maniere come les Nobles doiuent estre armeés l'en purroit respondre que le text ne l'en parle point pur ce qu' il est tout notoire quelles armeures ils douient auoir pour soy combatre My other English Authors haue no such difference nor this neither which the Customes haue inserted that both doit auoix les cheueuâ—x rougnes par dessâ—s les oreilles vnlesse that where it is said Uide 1. Hen. 〈◊〉 fol. 7 â—t 9 Hen. 4. fol. 4. b. cap. vltimum inâ—erius in some yeares que le teste doit estrerasé there bee so much signified The iudgement on their superiority is that if the defendant make his part good vntill the starres appeare in heauen or as the Norman Customes hath it vntill the time of their apparance knowne by the sunnes absence the Apellant shall bee deemed as vanquished as a false accuser punished and the Defendant acquirted But if this Defendant yeeld or bee ouercome Vltima supplicio punâ—etur sayth Bracton cum paena graui vel grauiori secundum Bract. lib. 3. tr de cqrona cap. 21. criminis qualitatem cum exheredatione haeredum suorum omnium bonorum amissione If â—layne yet the formality of the common lawe proceeding adiudges him to capitall punishment that thereby his posterity may suffer the grieuous concomitancy of his deserued infamy and the accuser eit de nous saith one in person Britt fol. 43. Victum non occidat Victor sed regium potiùs expectet iudicium Prisot 37. Hen. 6. fol. 20 b. of the King graund guerdon Rare are the examples of battells waged vpon Criminalls in the Aâ—â—alls of the English lawes and if I forget not the least plurall number doubled comprehends as many as are therein reported with ensuing a 8 Ed. 3 Itin. North. tit IudgmeÌ„t 225. 19. Hen. 6. fol. 47. 7. Ed. 3 fol. 310. 25. Ed. 3. fol. 42. performance What histories or other notes afford of that nature is fittest by itselfe to be collected A collection of diuerse examples out of the English Histories of Combats vpon imposed Crimes with some particulers of their formes and euents Chap. 9. VNder William Rous one William de Hou or Owe Malmesh lib. 4 de gest reg Flor. VVigornien pag. 465. accused of treason to the King challenged his accuser to the battell dum segnitèr se expurgat saith Malmesbury caecatus extesticulatus est Edgar sonne to Malcolme of Scotland was accused Georg BuchanaÌ„ Rer. Scotic lib. 7. reg 87. by one Orgar an Englishman that hee priuily boasted him-selfe and his allies to bee the onely true heires of the Crowne by Champion on Edgars part it was tried in the lists and the false accuser foiled Henry of Essex Standard-bearer to Henry the Flores hist. lib. 2. pag. 46. Matth. Paris in Hen. 2. pa. 133 second in his Welsh expedition was accused by Robert de Monte-forti that he forsooke his colours in the field The Combat was their chosen iudge the victory fell to Mountfort qua de causa saith Matthew Paris Henricus notam infamiae simul exheredationis iacturam incurrens indulgentia pij Regis apud Radingum where the lists were habitum monachalem suscepit That of Iohn de Viscont and Thomas de la March Apud StouaeuÌ„ in Annal. sub Ed. 3. fol. 392. in respect it was by consent to trye the truth of a case emergent out of the kingdome neither of them being subiects here cannot be materiall for this purpose Iohn of Ansley Knight appealed Thomas Catrington Th. de VValâ—â—ngham in Ris. 2. pag. 237 â—dit German Esquire of Treason viz. that hee for a great sum of mony yeelded vp the Castle of S. Sauiours in the Isle of Constantine in France to the French when as hee might well haue defended it hauing sufficient of all prouision in qua causa cum eodem armigero armorum lege obtulit se pugnaturum The matter was vpon diuers doubts and obstacles delaied in Edw. the third his life time and proceeded as little vntill 3. Rich. the 2. when Coactis iuridiâ—is so Thomas of Walsingham tells me et senioribus militibus regionis definitum est pro causa extrinseca sicut pro presenti causa quae non infra regni limites orta est pro possessione rerum transmarinarum bene licere quenquaÌ„ Duello confligere si Constabulario Marescallo regni perantea fuisset notificata et in eorum presentia duellum acceptatuÌ„ Day was appointed and the place at Westminster An exceeding conflux of people was from all parts of the kingdom Rege cuÌ„ proceribus regni coÌ„munitate ingressis provt moris est saith my author miles intrat armatus insidens dextrarium decentissimè phaleratum Nam appellator debet ingredi primò locum defensoris praestolaturus aduentum Alittle time after the defendant is thus demanded Thomas of Catrington defendant appeare to defend thy cause for which Sir Iohn of Ansley Knight and appellant hath publiquely in writing appealed thee and thus thrise by an Herehault At the third proclamation the Esquire appeares mounted on a steed stratum regulariter stramentis praeferentibus arma dicti Thomae who when hee approached the lists dismounted himselfe ne iuxta
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 Witchcraâ—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 saiâ—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 Jdâ—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 IusticiarioruÌ„ 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. â—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-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