The Duel

Reading II

The Charge of Sir Francis Bacon, Knight, The King’s Attorney-General, Touching Duels

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 shown the resolution I myself have to proceed without respect of persons in this business. But finding this cause on foot in my predecessor’s time, 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 admonished by an example made in the meaner, and the dog to be eaten 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 they are to expect; which may serve for a warning until example may be made in some greater person, which I doubt the times will but too soon afford.

Therefore, before I come to the particular, whereof your lordships are now to judge, I think the time best spent to speak somewhat (1) of the nature and greatness of this mischief; (2) Of the causes and remedies; (3) of the justice of the law of Eng. land, which some stick not to think defective in this matter; (4) Of the capacity of this court, where certainly the remedy of this mischief is best to be found; (5) touching my own purpose and resolution, wherein I shall humbly crave your lordships’ 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 magistrate’s hands, contrary to God’s ordinance, mihi vindicta, ego retribuam³, 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 quarrel: accruing to the 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, offenses of presumption are the greatest. Other offenses yield and consent to the law that it is good, not daring to make defense, or to justify themselves; But this offense expressly gives the law an affront, as if there were two laws, one a kind of gown law and the other a 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 Yearbooks, and statute books must give place to some French and Italian pamphlets, which handle the doctrines 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, in whom the expectation and comfort of their 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 t1ae King and realm, were able to make the fortune of a day and change the future of a kingdom. So 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 honor 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 honor 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 that 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 sober-minded 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 valor. 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 ledger performances. A man’s life is not to be trifled away; it is to be offered up and sacrificed to honorable 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 cause 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 labors 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 once 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 we set down in express words in the edict of Charles IX of France, touching duels, that the King himself took upon him the honor 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 humor 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 honor 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, is so punctual, and hath such reference and respect unto the received conceits, what is beforehand, and what is behindhand, 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 offense, if it shall please his Majesty to use it, that the wit of man can devise. This offense, my lords, is grounded upon a false conceit of honor; and therefore it would be punished in the same kind, in eo quis rectissime plectifur, in quo peccat. The fountain of honor is the King and his aspect, and the access to his person continueth honor in life, and to be banished from his presence is one of the greatest eclipses of honor that can be. If his Majesty shall be pleased that when this court shall censure any of these offenses 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 that darkness that he may not behold his sovereign’s face.

Lastly, and that which more properly concerneth this court. We see, my lords, the root of this offense 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 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 child of this latter age, and there is no shadow of it in any law, divine or human. Only it is true, I find in the Scripture that Cain enticed his brother into the field and slew him treacherously; but Lamech vaunted of his manhood, that he would kill a young man, and if it were to his hurt; so as I see no difference between an insidious murder and a braving or presumptuous murder, but the difference between Cain and Lamech.

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.

3 “Vengeance is mine, I will repay.”

4 “It is right to be taught even by an enemy.”

5 “To fight by proxy.”

6 “And so it seemed that they were fighting their temptations, so that God would have just cause to cast down a wonderful miracle upon those who emerged victorious from that fight.”