The Duel (30 page)

As for examples in civil states, all memory doth consent, that Græcia and Rome were the most valiant and
generous nations of the world; and that, which is more to be noted, they were free estates, and not under a monarchy; whereby a man would think it a great deal the more reason that particular persons should have righted themselves. And yet they had not this practice of duels, nor anything that bare show thereof; and sure they would have had it, if there had been any virtue in it. Nay, as he saith, “Fas est et ab hoste doceri.”
⁴
It is memorable, that which is reported by a counselor ambassador of the emperor, touching the censure of the Turks of these duels. There was a combat of this Kind performed by two persons of quality of the Turks, wherein one of them was slain, and the other party was converted before the council of bashaws. The manner of the reprehension was in these words: “How durst you undertake to fight one with the other? Are there not Christians enough to kill? Did you not know that whether of you shall be slain, the loss would be the great seignor’s?” So, as we may see, the most warlike nations, whether generous or barbarous, have ever despised this wherein now men glory.

It is true, my lords, that I find combats of two natures authorized, how justly I will not dispute as to the latter of them. The one, when upon the approaches of armies in the face one of the other, particular persons have made challenges for trial of valors in the field upon the public quarrel. This the Romans called “pugna per provocationem.”
⁵
And this was never, but either between the generals themselves, who were absolute, or between particulars by license of the generals; never upon private authority. So you see David asked leave when he fought with Goliath; and Joab, when the armies were met, gave leave, and said “Let the young man play before us.” And of this kind was that famous example in the wars of Naples, between twelve Spaniards and twelve Italians, where the Italians bore away the victory; besides other infinite like examples worthy and laudable, sometimes by singles, sometimes by numbers.

The second combat is a judicial trial of right, where the right is obscure, introduced by the Goths and the northern nations, but more anciently entertained in Spain. And this yet remains in some cases as a divine lot of battle, though controverted by divines, touching the lawfulness of it; so that a wise writer saith: “Taliter pugnantes videntur tentare Deum, quia hoc volunt ut Deus ostendat et Jaciat miraculum, ut justam causam habens victore efficiatur, quod sœpe contra accidit.
⁶
” But whosoever it be, this kind of fight taketh its warrant from law. Nay, the French themselves, whence this folly seemeth chiefly to have flown, never had it but only in practice and toleration, and never as authorized by law; and yet now of late they have been fain to purge their folly with extreme rigor, in so much as many gentlemen left between death and life in the duels, as I spake before, were hastened to hanging with their wounds bleeding. For the State found it had been neglected so long, as nothing could be thought cruelty which tended to the putting of it down. As for the second defect, pretended in our law, that it hath provided no remedy for lies and fillips, it may receive like answer. It would have been thought a madness amongst the ancient lawgivers to have set a punishment upon the lie given, which in effect is but a word of denial, a negative of another’s saying. Any lawgiver, if he had been asked the question, would have made Solon’s answer: That he had not ordained any punishment for it, because he never imagined the world would have been so fantastical as to take it so highly. The civilians dispute whether an action of injury lie for it, and rather resolve the contrary. And Francis L of France, who first set on and stamped this disgrace so deep, is taxed by the judgment of all wise writers for beginning the vanity of it; for it was he, that when he had himself given the lie and defy to the Emperor, to make it current in the world, said in a solemn assembly, “that he was no honest man that would bear the lie,” which was the fountain of this new learning.

As for the words of approach and contumely, whereof the lie was esteemed none, it is not credible, but that the
orations themselves are extant, what extreme and exquisite reproaches were tossed up and down in the Senate of Rome and the placer, of assembly, and the like in Græcia, and yet no man took himself fouled by them, but took them but for breath, and the style of an enemy, and either despised them or returned them, but no blood was spilt about them.

So of every touch or light blow of the person, they are not in themselves considerable, save that they have got them upon the stamp of a disgrace, which maketh these light things pass for great matters. The law of England and all laws hold these degrees of injury to tile person, slander, battery, mayhem, death; and if there be extraordinary circumstances of despite and contumely, as in case of infidels and bastinadoes and the like, this court taketh them in hand and punisheth them exemplarily. But for this apprehension of a disgrace that a fillip to the person should be a mortal wound to the reputation, it were good that men did hearken unto the saying of Gonsalvo, the great and famous commander, that was wont to say a gentleman’s honor should be de tela crassiore, of a good strong wrap or web, that every little thing should not catch in it; when as now it seems they are but of cobweb-lawn or such light stuff, which certainly is weakness, and not true greatness of mind, but like a sick man’s body, that is so tender that it feels everything. And so much in maintenance and demonstration of the wisdom and justice of the law of the! and.

For the capacity of this court, I take this to be a ground infallible, that wheresoever an offense is capital, or matter of felony, though it be not acted, there the combination or practice tending to the offense is punishable in this court as high misdemeanor. So practice to imprison, though it took no effect; waylaying to murder, though it took no effect; and the like; have been adjudged heinous misdemeanors punishable in this court. Nay, inceptions and preparations in inferior crimes, that are not capital, as suborning and preparing of witnesses that were never deposed, or deposed nothing material, have likewise been censured in this court, as appeareth by the decree in Garnon’s case.

Why, then, the major proposition being such, the minor cannot be denied, for every appointment of the field is but combination and plotting of murder. Let them gild it how they list, they shall never have fairer terms of me in a place of justice. Then the conclusion followeth, that it is a case fit for the censure of the court. And of this there be precedents in the very point of challenge. It was the case of Wharton, plaintiff, against Ellekar and Acklam, defendants, where Acklam, being a follower of Ellekar’s, was censured for carrying a challenge from Ellekar to Wharton, though the challenge was not put in writing, but delivered only by word of message; and there are words in the decree, that such challenges are to the subversion of government. These things are well known, and therefore I needed not so much to have insisted upon them, but that in this case I would be thought not to innovate anything of my own head, but to follow the former precedents of the court, though I mean to do it more thoroughly, because the time requires it more.

Therefore now to come to that which concerneth my part, I say that by the favor of the king and the court, I will prosecute in this court in the cases following: If any man shall appoint the field, though the fight be not acted or performed. If any man shall send any challenge in writing, or any message of challenge. If any man carry or deliver any writing or message of challenge. If any man shall accept to be second in a challenge of either side. If any man shall depart the realm, with intention and agreement to perform the fight beyond the seas. If any man shall revive a quarrel by any scandalous bruits or writings, contrary to former proclamation published by his Majesty in that behalf.

Nay, I hear there be some counsel learned of duels, that tell young men when they are beforehand, and when they are otherwise, and thereby incense and incite them to the duel, and make an art of it. I hope I shall meet with some of them too; and I am sure, my lords, this course of preventing duels, in nipping them in the bud, is fuller of clemency and providence than the suffering them to go on, and hanging men with their wounds bleeding, as they
did in France.

To conclude, 1 have some petitions to make first to your lordship, my lord chancellor, that in case I be advertised of a purpose in any to go beyond the sea to fight, I may have granted his Majesty’s writ of ne exeat regnum to stop him, for this giant bestrideth the sea, and I would take and snare him by the foot on this side; for the combination and plotting is on this side, though it should be acted beyond the sea. And your lordship said notably the last time I made a motion in this business, that a man may be as well fur de se as felo de se, if he steal out of the realm for a bad purpose. As for the satisfying of the words of the writ, no man will doubt but he does machinari contra coronam, as the words of the writ be, seeking to murder a subject; for that is ever contra coronam et dignitatem. I have also a suit to your lordships all in general, that for justice’s sake, and for true honor’s sake, honor of religion, law, and the King our master, against this fond and false disguise or puppetry of honor. I may, in my prosecution, which, it is like enough, may sometimes stir coals, which I esteem not for my particular, but as it may hinder the good service, I may, I say, be countenanced and assisted from your lordships. Lastly, I have a petition to the nobles and gentlemen of England, that they would learn to esteem themselves at a just price. Nos hos qu–asitum munus in usus—their blood is not to be spilt like water or a vile thing; therefore, that they would rest persuaded there cannot be a form of honor, except it be upon a worthy matter. But this, ipsi viderunt, I am resolved.

—This speech was given by
Francis Bacon
(1561
–
1626) in his official capacity as the King’s Attorney-General, during a suit brought against two nobles who had fought a duel. Bacon was the Attorney-Genral of King James I and held that position from 1613 to 1617, when he became the Lord Chancellor
.

This is a painful theme. In the notices entitled Camelford, William Barrington, O’Connell, and Colclough, the reader will find details to move his feelings. But these are only examples. A gentleman of wide observation, who has always lived in a duelling section of the United States, and who has taken much pains to inquire into the mental condition of every person who had slain an adversary, remarked, that not a single instance had come to his knowledge which did not afford him proof, that peace of mind was forever destroyed. The same sad intelligence has been derived from others; and as the result of my inquiries, I can truly say, that the narratives which I have read and to which I have listened have uniformly reminded me of the words of Psalmist: “
Turn thee unto me, and have mercy upon me: for I am desolate and in misery.
”

Addison, in the
Spectator
, refers to Thornhill (who slew Sir Cholmy Dering) under the translated name of
Spinamont
, and possibly gives us the substance of what fell from the lips of the unhappy survivor in an address to the imaginary King
Pharamond:
“I come not,” he says, “O excellent prince, to implore your pardon; I come not to relate my sorrow, a sorrow too great for human life to support”; and again, “Know, then, that I have this morning killed in a duel the man whom of all men living I most loved.” Dante, in his Hell, describes the sufferings of the damned in words that cause us to shudder; but unless we doubt the veracity of some of the first characters in the country, the poet’s inexhaustible imagination fails to express the wretchedness of most of the living men whose “feet have slipped in gore.” Some utter unceasingly,

Others, men of gentle and affectionate nature, who had often grieved at the wanton killing of a bird, and on whose bosom wife and children nestled, —with the blood of a husband and a father upon their hands,—dwell, in their woe, upon the thought that