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, pio (que) 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 [Page 8] 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. Merulā 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. siqui­dē 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 [Page 3] 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 it) yet not so perfect as new. It were audacious to examine it, much more to affirme any other in all numbers absolute. Onely thus much; I see not why two or three on a side are not by power of a like continued addition, as neerely equall to Xer­xes Myriads as a million, the least of numbers be­ing Euclidis defini­tio numeri 7. Elem. def. 2. as well contained vnder that [...], as the greatest. But in these legall matters toucht with such or other logique niceties, the law thus excuses, Omnis definitio in iure ciuili periculosa est: F. de reg▪ iur l. 202. parum est enim vt non subuerti posset. Those two parts, genus & differētia specifica, cānot be alwaies, and seldome are according to Aristotelique lear­ning in definitions of law subiects. To conclude this, accept the names notation as your phan­tasie perswades, or true signification, as your iudgment directs, although (I confesse) you may possibly finde mee erring in one; which if you [Page 4] correct, you may chaunce as soone to erre as another, but to your correction with respect I submit me.

TO diminish imminent daunger of a greater blood-shed, Antiquity oftimes made choise of the Duello, most commonly, as we describe it, twixt two combatants: (although some-times into a greater number, yet rarely hath this contraction beene made.) In the Troian warre Homer testi­fies of Diomedes and Aeneas, Paris and Menelaus, Iliad. y. [...]. & [...]. Hector and Aiax, as assaying by single combat to decide the bloody controuersies of two the most famous people of the Gentiles. Hillus leader of the Athenian, and Echenus of the Arcadian forces by personall conflict striue in Herodotus to trans­act In Calliope. their controuersie of priority in the army, as also to determine the right of the Herculean stocke in their fathers possessions. The Romans wageing war with the Albans referred all to the Dionys. Hali­car li. 3. antiq. Rom. Liu. lib. 1. successe of the Curiatii and Horatii, who determi­ned it by victory atchieued by the Horatii. Of like [Page 5] nature (the hidden secret of Gods particuler [...] ▪ Reg. cap. 17. prouidence exempted) was that of litle Dauid and great Goliah in holy writ reported; as also of the British Arthur and Flollo tribune of the Emperour Leo in Gaule, after Geffrey of Monmouth his relati­on. Galfred. Mo­numeth. lib▪ 7▪ cap. 3. Nor different was the offer of Lewes the first Christian King of the Frankes to Alaricus Prince of the Westgothes, nobilissimo pari fortunam (as Ae­milius P. A [...]milius lib. 1. in Clodoueo. writes) vtrius (que) gentis decretum ir [...]. And in the latter memory of our auncestors, a gene­rall sedition twixt▪ the French and Italian con­ioyned Guicciard. lib. [...]. hist. Ital. armies was epitomized into a select num­ber (as Guicciardine reports) of thirteen soldiers of each nation. George Castriot, alias Seanderbeg ouer­came Hist. Scander­beg lib. 5. Feribassa in like fight. Of these and like ex­amples in forrein stories is frequent mentiō; nor in the English are they wanting. Danish irrupti­ons a [...]d the bad aspects of Mars, hauing drencht the common mother earth with her sonnes blood streames, vnder the raigne of Edmund a Saxon Henric. Hun­tingd. lib. 6. hist. edit. Germ. fol. 36 [...]. Cam­d [...]n. in Dobunis Monarch, misso in compendium (so worthy Camden expresseth it) bello vtriusque gentis fata Edmundo Anglorum & Canuto Danorum regibus commissa fuerunt, qui singulari certamine de summâ imperij in hâc insulâ, (that is the Eight in Glostershire) depugnarunt. Agreeing herevnto was that one and last condition of the three, which the Duke of Guil. Malmes▪ lib 3. de gestis reg. Ang [...]iae. [...]ol▪ 56. Normandy before his conquest offered to King Harold, vt scilicet spectante exercitu gladio rem ventilarent. So was it offered betweene [Page 6] Iohn of England; and Lewes of France, that by a Annal. Hibern. [...]uperrime edit. sol 797 single Champion on both parts, their contro­uerted right to certaine Forts should be brought to decision. Neither did Richard of that name the Rot. Parlam. 7. Rich 2. second, hence degenerate, in challenging the French Charles the sixt, vpon that royall quarrell of best title to the Fleurs de lis. The iustice of Combats in this kinde (so the whole warres bee Fris. de rep lib. 1. c▪ 26. Ayala lib. [...]. cap. 3. Bodin de reb. cap. 4. lib 7. Al [...]er. Gentil. de iure belli. lib. 1 c 3. iust) is approued by iudicious writers, Frisius, Ayala, Gentilis, Bodin and others. Noninterest enim (saith Bodin) quo numero aduer [...]us hostes decernatur; learned Alciat making no doubt, but that Prin­ces, of whose kingdome-controuersies no earthly Magistrate hath iurisdiction, may vpon force of their priuate credit with Bellona, discusse what-so­euer Alciat▪ de sing. certam. lib. cap. 3. their publique wrongs. Cum enim (saith he) bellum non nisi maximâ calamitate humani generis inuehatur, quid iustius excogitari potest, quam vt, tantâ noxâ de medio sublatâ, hi potissimum soli armis decernant ad quos ea res pertinet, victorem (que) res se­quatur? Indictum istud de Siciliae regno duellum & ple­niùs refert, & in eo notatu dignissima Pa­ris de Puteo lib. 3. cap. 2. where hee vouches the appointed lists at Bourdeaux, twixt Charles of Aniou, and Peter of Ar­ragon, for triall of right to the Crowne of Sicily, which was allowed by Pope Martin and the whole colledge of Cardinals, where-vnto hee addes a se­cond, of two brethren of Hungary. Haec est necessi­tas B [...]ld. 5 consil. 49 [...]. quae bellum iustificat (saith a great Ciuilian) cum ad bellum extremo loco confugitur. Antiquity hath allowed it, Reason confirmed it, therefore so I leaue it.

TO omit those seruile Gladiatores of Rome (in Dio lib. 54. C. de glad▪ toll l vnicâ. Cruen­ta spectacula in otio ciuili [...]t domestica qui­ete non placent quapropter om­nino gladiato­res esse prohi­bemus. & vid. Othon. Frisin­gen. lib. 4. cap 3. De his siquidē plura velis, adi Natalem Co­mitem. lib. 5. Mytholog. cap. 1▪ & seq. whose saleable blood the Amphitheaters sā ­dy floore, so oft washed it selfe as Lady mony re­quested, vntill Augustus restrained this publike spectacle to 'twise onely in a yeare, and Constan­tine vtterly abrogated the vse of them.) The old Grecians had their Olympian games instituted by Hercules, celebrated euery forth yeare; their Pythi­an from Apollo, in which the Gods them-selues▪ are said to haue iudged it honor to haue receiued the chaplet of Baies; their Nemean dedicated to Archemorus; their Isthmian established by Theseus; in all which although there were fiue sortes of tryal of actiuity (which they called Pentathlon, in Odyss. [...]. Latin Quinquertiu [...], yet the chiefe and most respected was [...], i. either hand fight Plutarch. sym­pos. lib. 2. cap. 4. & 5. or wrastling, both, for vse and antiquity, to haue preheminence of the other three, as vpon that Achrostich of Homer▪ and other such passages of his, Plutarch long since specially obserued. What regard to these two sortes (which not [Page 8] amisse may bee stiled single combats) the Anci­cients had Vlisses his entertainment at Alcinous his pallace described in the Odysses, and his vic­tory Odyss. θ. Iliad. φ. with others at Patroclus his funerall towards the end of the Iliads giue testimony sufficient, al­though no more could bee gotten. But as A­chilles did there at his friendes exequies, so did Aeneas at that honoured day of these anniuersa­ry rites performed to his enterred father, to this purpose making his edict— qui viribus audax A [...]ncid. lib. 5. Seu crudo fidit pugnam committere cestu Cuncti ad sint meritae (que) expectent praemia palmae.

The learned Poet doubtlesse alluding to the custome vsed after Grecian victories in that quaternity of games, which was (as Pausanias Pausan. in Ar­cadicis. witnesseth) that besides their deserued garlands Victores in v­no quouis cer­tamine Hi [...]ro­nici, in omni­bus Pe [...]bodi appellabantur. Fest. et Bern­ [...]art. ad lib. 6. Thebaid. Orat. pro Flac [...]o. of Oliue, Bayes, Parsley, Pine, or such like, the Vic­tors did continually carry a Palme-branch in one of their hands; which being atchieued by superi­ority in all foure, is by Cicero affirmed, apud Grae­cos propé maius & gloriosius, quam Romae trium­phasse. Which by Statius in his preface to the Combat twixt Capaneus and Alcidamas is thus proportionatly affirmed.

Thus is it most apparant that the chîefest honour among the Auncient (both Troyan and Greekes) consisted in the deserued crownes of those Duel­lo victories, nor found they better forme of honoring the memory of the supposed ayery [Page 9] ghostes of their dead-sleeping friendes or aun­cestors, Liu. dec. 3. lib. 5. then such kinde of parentation. The Pu­nike Custome agreed with it, as in the last honor of betrayed Gracchus ordered by Hanibal [...], is regis­tred. Idem. dec. 3. l. 8. ast [...]pu [...]ant [...]r quae apud Taci­tū. l. 2. annal. & Su [...]oniū in Claud. c. 1. Militaria ista certamina [...]u­n [...]br [...]s dicūtur decursiones. gallic [...] Ioustes. Hadrian. Iuni­us in Nomen▪ clat. The Romans fayled not in like duty and practise: A whole place of Liuy transcribed shewes it, and thus shewes it selfe. Scipto Cartha­ginem ad vota soluenda dijs munusqué gladiatorium, quod mortis causa patris patruiqué parauer at eden­dum redijt: Gladiatorum spectaculum fuit, non ex eo genere hominum, ex quo lanistis comparare mos est, seruorum delectu ac libertorum qui venalem sangui­nem habent; voluntaria omnis & gratuita opera pug­nantium fuit; nam alij missi ab regulis sunt ad speci­men insitae genti virtutis ostenden [...]ū, alii ipsi pro­fessi se pugnaturos in gratiā Ducis; alios aemulatio & certamē vt prouocarent, prouocati (que) haud abnuerent, traxit. Adde to this but Vlpians iudgement in ff ad leg. A­quil. l. 7. qua actione huic persimi [...]e apud Atticos babes lege [...] in Pla­tone. lib. 7. de l [...]gib. Con [...]o [...]s item. l. 2. ff. de alea­toribus arg. Pancirol. l. 2. rer. nou rep. tit. 20. law, and what the old state of Rome allowed will be manifest. Si quis (saith he) in colluctatione, vel in pancratio, velpugiles, dum inter se exercentur, al­ius aliū occiderit siquidem in publico certamine cessat Aquilia: quia gloriae causa & virtutis, non iniuri [...] gratiâ videtur damnū datū: thus much for y ^• more antique ages. Middle times afford the like Panci­rollus after Nicetas affirmes that Manuell Comme­nus Emperor of Constantinople (his gouern­ment was about the time of our Stephen & Henry the 2.) instituted Torneaments, which the Italians call Giostre, and the French Ioustre, that is military exercises in single opposition, for ex­ploration of valour and ostentation of Martiall [Page 10] vertue. Which so farre oft times proceeded,

and Achilles, Horace speakes. But long before Horat. lib. 1. sat. 7. Verstegan. Cap. 4. Munster. in Cosmograph. lib. 3. Bocer. de bello lib. 2. cap. 4. Manuells time Henry of Germany surnamed the Fouler (as my authors tell me) was in his owne territories author hereof, annexing certaine lawes, among which one was thus, That hee, which was not of a generous stocke, de (que) sua nobi­litate quatuor auorum natalibus docere non poterit, should by no meanes bee admitted as a party in these Launce-controuersies. The common vse of this kinde is easily knowne by the Lateran in­hibition in a Councell held vnder Pope Alexander the third (in our Henry the seconds time) thus ex­pressing it selfe. Felicis memoriae Innocentii & Decret. lib. 5. tit. 13. & in Rogeri Houedē Annalibus. in Hen. 2. fol. 333. Eugenii predecessorum nostrorum vestigiis inhae­rentes, detestabiles illas Nundinas vel ferias quas vulgo Torneamenta vocant, in quibus milites ex conducto conuenire solent, & ad ostentationem viri­um suarum & audaciae temeré congredi, vnde mortes hominum & animarum pericula saepè proueniunt, fie­ri prohibemus, &c.

But this notwithstanding, when Clement the Fifth vnderstood that the holy-land-voyage or­dained in the councell of Vienna was much hin­dered by the prouoked Iustes & Torneaments of Extrau. de Torneamentis▪ c. vnic. Tempore Ed. 1. the Crosse-knightes Torneamenta ipsa & hastilu­dia siue Iuxtas in Regnis, Franciae, Angliae & Al­manniae & aliis nonnullis prouinciis in quibus ea [Page 11] consueuere frequētius exerceri specialiter interdixit, binding the offenders vnder anathematizing con­straint: into which punishment because diuers Martialls had neuerthelesse incurred, at the in­stance of Phillip King of France and Nauarre, Pope Iohn the. 22. alias (if you recken Pope Ioane) the 23. Celments successor made (as his extrauagants testifie) for this purpose generall absolution.

Particularly for this Kingdome, you may re­member the Rotundae Ta bulae Arthuri m [...]minit Mo­num [...]hensis▪ l. 7. cap. 4. in eâ magnificenti­am & comita­tum regium addidit. Ordi­nis etiam sed male Mir aeus. lib 2 orig. e­quest. cap. 4. Round table (as it is reputed) of the thrise famous Arthur kept at Winchester, but with­all remember that, thereof, nihil est (saith Iudi­cious In Belgist Athenoeus. li. 4 dipnosoph. c. 13 Camden) quod dicā, nisirecentioris esse aetatis, vt intuenti facile appareat, Superioribus enim seculis, cum virtutis bellicae exercendae gratia militares de­cursiones (Torneamenta vocant) frequēter haberentur, huiusmodi mensis (such tables also were vsed among the old Knights of Gaule as Athenaeus there cited reporteth) vsi erant, ne quod discrimen inter nobiles ex ambitione existeret. These kind of Honorary Combats by Richard Ceur de Lion were confined within the lists of fiue places in the Kingdome, you shall see his patent of it to Hubert then Arch­bishoppe of Canterbury; sciatis nos Concessisse quod Ex libro rub [...]o scaccarij. Rich. 1. Torneamenta sint in Anglia in quin (que) placeis, inter Sarum & Wilton, Inter Warwike & Kelingworth, in­ter Stamford, & Walingford, inter Brakeley & Mixe­ber inter Bly, & Tikehill, ita quod pax terrae meae non infringetur. Et comes qui ibi torniari voluerit dabit nobis. 20. marcas, & Baro 10. Marcas, & miles, [Page 12] qui terram habuerit, 4. marcas & qui non haebuerit 2. marcas. Nullus autem extraneus ibi attorneabit; vnde vobis mandamus quod ad diem Torneamēti habeatis ibi, 2. Clericos & 2. milites vestros, ad capiendum sa­cramentum de Comite & Barone quod vobis de pre­dictâ pecuniâ ante Torneamentū satisfacient, & quod nullum Torneare permittant antequā super hoc satis­fecerit; et inbreuiari faciant quantum & a quibus re­ceperint. Et▪ 10. marcas pro cartaad opus nostrū capiatis vnde Comes Sarum, et Comes de Clarâ, & Comes de Warrenâ plegii sunt. Teste meipso apud villam epis­copi 22. die Augusti. The Earle of Glocester vnder Henry the 3. confidens (saith an old Monke) de cō ­cessione 31. Hen 3. ex Math. Paris. pag. 981. a D. R. obtentâ, et voce praeconia ex parte e­ius proclamatâ, die qua Gulielmum fratrem suū bal­theo cinxit militari cepit vnum torneamentum, apud Northamtonā feriendum, vt ibidem memoratus Willielmus cum suis contyronibus militiae peritiam & addisceret, & experiretur. But of this licence, for feare of inconuenience that might insue through the boiling choller of such hot bloods, Repeale was made with intermination, ne transgressorum 34. Hen. 3. ex eodem. pag. 1123. haeredes de paterna gauderent haereditate: the like to what was here first licenced, was in his time gran­ted, and at Rochester performed twixt English and strangers, in quo contriti sunt turpitér alieni­genae, saith Mathew Paris, that writes it. Roger of Mortimer founded at Kelingworth, Ludum 7. Ed. 1. Thom. de VValsingh. pag. 49. [...]d [...]. nouissimâ. (The wordes of Thomas of Walsingham) mi­litarem, quem vocant Rotundam tabulam, of an hundred Knights and as many Ladies, whither [Page 13] for Martiall exercise was very great conflux out of diuers countries. Some difference was be­tween common Torneaments and this ceremony of the Round Table, which was in vse of auncient time before this of the Lord Mortimer, and that among the Princes of the Norman blood. The two Chronologers Mathew Paris and of VVest­minster, remember that about xxxv. of Hen. 111. diuers Knights appointed their Ioustes at VVal­den Flor. hist. lib 2. p. 250. edit. ve [...]ri. in Essex, and they both call them by the name of the Round Table. But more especially one of Math. Parisi­ens. p. 1147. e­dit. primâ. them thus. Constituerunt vnanimiter, non vt in hast iludio, illo quod cōmuniter & vulgariter Tornea­mentū dicitur, sed potius in illo ludo militari qui Mē ­sa Rotunda dicitur, vires suas attemptarēt, where he inserts the infortunate Combat of two worthy Knights Heruald of Muntenny, and Roger of Lem­burne, who meeting at the full carriere, Lemburnes launce ( cuius mucro (saith he) prout deberet non erat hebetatus) so pierst Herualds beauer, that as soone death pierst his heart: these few examples taken out of many more, shew the vse of these hono­rable Iustes among the Auncients of this King­dom, but so restrained as the Princes power in li­cencing or prohibiting (which is proued by di­uers records also, transcripts wherof I haue seen, in the hands of the right worshipfull and learned Knight, Sir Robert Cotton of Conington, with punishment adioined sub forisfactura omnium quae regi forisfacere poterit) alwaies as supreme iudge of Chiualry claimed and kept prerogatiue.

VNto these extraiudiciall duells hetherto spo­ken off (the one beeing vnder the generall name of publike good for the Church or Com­mon-wealth, the other vnder that which is for exercise of Vertue which consists in action) may bee added that of free prouocation or chal­lenge without the Princes or Magistrates autho­rity, proceeding from supposition of dishonor re­ceiued Galfred▪ Chau­cer. in equi [...]e suo. from the party challenged. For Truth, Ho­nor, freedome, & Curtesie being as incidents to per­fit Chiualry vpō the Lie giuen, Fame impeached, Body wronged, or Curtesie taxed ( qu'on a diffamé & Ma [...]uoisin. [...]n­le Combat, &c. P. [...]. C. 3. Bodin▪ de rep. lib. 4. cap. 7. dishonoré l'honneur des dames as one saies) a custom hath bin among the French, English, Burguignons, Italians, Almans, & the Northern people (which as Ptolomey notes are alwaies inclined to liberty) to seek reuenge of their wrongs on the body of their accuser, & that by priuate combat, seul a seul, with­out iudicial lists appointed thē. S. Lewes first pro­hibited it in France, and diuers times diuers of his successors in the same point of policy succeeded him; but both S. Lewes and the rest were constrai­ned (for the most part) to yeeld to the rescisso­ry petitions of their subiects, who complained that the restraint of open Combats occasioned [Page 15] multitudes of hidden murthers. Nay Francis of that name the first, is said to haue openly denied at his councell table, virum bonum esse qui menda­cium Bodin▪ ibid. oblatum armis non reiiceret; striking with those words (indeed) at Charles the fift, who had then lately pocketed vp a wrong of that nature receiued from him-selfe; which, if you may cre­dit Bodin, became as cleare lawe among the soldi­ers and Gentlemen of his countrey. But vpon a combatt betweene Iarnach and Chastegneray, two Dern. troubles in Hen. 2. ann. 1547. French gallants, wherein Death was Vmpire by expiring the best spirit of the one, the quarrell being onely for the Lie giuen; Henry the second Constitutio ista exarata est en l'bist▪ de la pa­ix. lib. 5. per M. P. Victorē. fol 328. by expresse edict inhibited the Duello for future times. Such after edicts are testimony sufficient, how frequent need hath beene of them; And ac­cordingly Henry of Nauarre now King there, some fiue yeares since, published the like, and againe very lately seconded him-selfe by another con­stitution Nouissima ve­rò iam Anglic [...] nuperrime edi­ta, in cuius ar­tic xiii ista paena. made in Iune last, whereby all such pro­uocation (without speciall leaue from the Princes person, his Constable and Marshall, or Lords lieutenants of the Prouinces) is forbidden; vnder paine to the offendor of beeing depriued from euer being able to make his part good by armes with any man, as likewise from obtaining any satisfaction or amends for whatsoeuer iniury he shall pretend to haue receiued.

For our owne Countrie, let this one example bee obserued. Sir Nicholas de Segraue, a Baron in Edward the firsts time, challenged one Sir Iohn de [Page 16] Crumbwell, and because the Kings prohibition re­strained the combat heere in England, dared him into France, therein (as the Record mentioneth) subiecting, as much as in him laye, the Realme of England to the Realme of France. Segraue was herevpon staied in his passage at Douer, commit­ted to the Castle, and afterward in the Kings­bench confessed his fault, and submitted him­selfe to the King, de alto & basso. Where-vpon Placit. de Term. Pasch. 33. Ed. 1. thus speakes the Iudgement, & super hoc D. R. volens habere auisamentum Comitum, Baronum, Magnatum, & aliorum de consilio suo, iniunxit ijsdem in homagio, & fidelitate, & ligentia, quibus ei tenentur, quod ipsi fideliter considerent qualis paena pro tali facto fuerit infligenda; qui omnes habito super hoc consilio dicunt, quod huiusmodi factum meretur poenam amissionis vitae. What they thus adiudged vpon his desert, was (if I mistake not) grounded more on their owne exasperated conceit, then any English custome.

How this Extraiudiciall Combat is lawfull or contrary (I meane by the law of armes & the Im­perialls, although the diuine law and *christianity Lactant. lib. de ira dei. teach otherwise) thus I read. Licitè proceditur si in­iuriâ lacessitus in eiusmodi sit territorio vbi decus et honorem suum ope iudiciali non possit tueri (vt si co­pia Iudicis non fuerit.) Illicitè, si iudicis & iniuriantis Arg. l. 9. ff. de manumiss, vindict. copiam habere possit. After diuers glosses and com­menters vpon seuerall lawes of the Pandects and Code (sith honor is not lesse, nay more then life to bee respected) my Triumvirate of writers of [Page 17] this subiect, Alciat and the very late Bocer, and Alciat▪ de sing. cert. cap. 3. Bocer. lib. 2. cap. 8. Beuth. conclus. 76. Beuther, all great Lawyers, expresly affirme as much in constant conclusiō, which shall conclude also these tripartite extraiudiciall formes; the fourth for defence of possessions from iniurie and rapine, failing in sufficient sollemnity for desert of bearing a part in this diuision.

NExt follow the Iudiciall sort, which are by some legall or ordinary proceeding mana­ged, and are part of the number of the auncient Trialls, which were either Canonicae or Vulgares. The Canonicae were such as relyed vpon Church­doctrine, and religion; as especially Oath and re­ceiuing the Eucharist, both which in England a­mong the Saxons were in vre. The Vulgares (called Leges Canuti. can. 5. exploratoriae purgationes, or probae, were the ancient Ordells thus deuided: Fiery, Watry, & of Camp-fight, which is the Duello. The two first omitted, (as also the tryall of Witches, by casting them bound into the water, or valuing their waight neuer aboue a certaine Poize and such like) the last onely is the present subiect.

In those times, which the Philologers call My­thique, there is among Poets some-what not altogether vnlike this kinde of tryall of doubt­full right, (if you will admit that there is any [Page 18] preheminent right among equally respected wooers.) Hee that could shoote best in Vlysses bow, was for delay by Penelope her selfe iudged as the worthiest of Penelope. Oenomaus his procla­mation Lucian. in Charidemo▪ of his chariot-courses to make triall who should enioy Hippodamia (which Pelops through perfidious Myrtilus at length won) sauours som­thing of respect to Bellona's iudgement, for al­though in the swiftnesse of their coursers, the victory consisted, yet seeing bello armantur equi, bellum (que) armenta minantur, and great Achilles Virgil. Aeneid. had his education vnder a Centaure, this is a part as well of Mars his discipline, as close handy strokes.

In the time historique, when the great Iusting at Carthage in Spaine was appointed by Scipio, in ho­uor of his Father and Vncle, two noble Spaniards Corbis and Orsua (Cozen-germans) striuing for the title of superiority in a citty there called Ibis, non Liu. Ab [...]. C. lib. 28. alium Deorum (saith my author) hominumuè quam Martem se iudicem habituros esse professi sunt: al­though Scipio laboured much for quiet transac­tion of the controuersie. Both hauing entered the lists, maior (saith Liuy) vsu armorum & astu facile stolidas vires minoris superauit. But it were too Ar­cadian-like, to fetch hence, or out of these times the infancy or beginnings of the Duello-triall by course iudiciall.

The Northerne inhabitance (as▪ before is noted) haue especially of old time made vse of this forme of searching out the hidden truth. The Russians, [Page 19] Hungarians, Almans, Normās, English & others. But the most cōmon iudgment of writers, and cleerly the truest, deriues the fountaine thereof from the Ancient Lumbards, (called by reason of their long Beards Longobardi) a people, that (out of those Northerne parts of Europe which vnder the ge­nerall name of Scandia, containe Norway, Sweth­land, Danemarke and other regions by North high Germanie) ouer-ran some of the chiefe countries of this fourth part of the world, and indeed at the first, when they sought those new habitations, tried their title of safe passage through some parts of Germany by single fight, twixt one of Paul. VVarn­fred. de gest. Longobard. lib. 1. cap. 12. their owne Campe, and (as Paule warnfred re­ports) another of their enemies. They were a na­tion like enough to bee Fathers of such a child, Tacit. de morib. Germanorum. which is alone testified in that of Tacitus, writing of the largenesse of some of their neighbours states. Contra Longobardos paucitas nobilitat: (so neat Lipsius reads it) quod plurimis ac valentissimis nationibus cincti non per obsequium, sed praeliis & periclitando tuti sunt▪ Nay the same author hath in expresse termes, that which directly tastes of this trying Monomachy among some of the adioy­ning people of that climate. Eius gentis (saith he) Tacitus ibid. cum qua bellum est, captiuum quoquo modo intercep­tum, cum electo popularium suorum patriis quen (que) ar­mis committunt, victoria huius vel illius pro praeiu­dicio accipitur. But for the matter-selfe with-out Carol. sigon. hist. de regno Italiae. lib. 2. longer circumstances, Longobardorum (so saies my Italian historiographer) antiqua est consuetudo, vt [Page 20] crimina vel maxima singulari praelio purgarentur, quae, poste à per leges translata per multa tempora ob­seruata est. In so much that, by speciall constituti­on of Fronto (alias Frotho) King of the Danes, 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 d [...]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▪ l [...]gibus [...]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 ti [...] de. vulgari pur­gatione. Concil. Trident sess. 9. can. 19. ps. 2. combat of two elected dhampions, cum hoc (so he wrot) & h [...]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, & quocun (que) 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 obtinēt, priuati intelligantur, &▪ si [Page 21] feudalia sint, directis Dominis statim acquirātur. Qui verò pugnam commisserint & qui eorum patrini vo▪cantur, excōmunicationis & omnium bonorum suorū 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 quenquā 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 [...]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.

I Thinke it not easy to proue this custome in Eng­lād before the Norman conquest; yet it appeares y ^• the ancient Germās (who were the fathers of the [Page 22] 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 Kamp­fight, (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. annal [...]um fol. 346. & seq. G. insuper Cam­denū & Lam­bardum in ex­plic verb. & nouissi nê quae sunt ab honoratissimo & J. C. tissimo V. D. Ed. Coke Eq. aurato & priuatorum iudiciorū prae­to [...] summo ad ter [...]ium l [...]brū responsorum edita, & maxi­me quae ab i [...]sde e [...]eru [...]sio Tilburiensi tr [...]scr [...]bū [...]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 [...]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 [Page 23] 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.

GEnerally it being thus from the antients brought into England, what followes of it also shalbe within England chiefely confined. As Cicer in orat. pro Cecinna. the diuision of iudgements is bipartite, consisting [Page 24] 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 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. [...]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, Br [...]ct. lib. 3. tr [...]ct. de coro­n [...]. 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 [Page 25] 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 P [...]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.

[Page 26]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, secund [...]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 [Page 27] 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. [...]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 sh [...]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.

[Page 28]In Henry the fourth: in an appeale of Robbery the Defendant pleads not guilty, and this was M. 9. Hen. 4. sol. 4. & Stā ­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 d [...]fference in Consuetudi­nes Norm, cap. 68. id ipsum quod superi [...] ­res illi [...]t anti quiores, habēt. 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.

IF you inquire what weapons and armour is fittest generally for Combatants vse, among Marc de la Ber. part. 1. c [...]p. 20. & 21. Alciat. de sing. certā 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 wi [...]h horne of one length, and euery of them a quadranguler shield without other weapon, [...]ont nul ne puisse auter greiuer. Of their bare hand-fight it might bee doubted vpon an old president vnder Edward P. 1 [...] 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 bastōs & sheilds, that is, Fustes & scuta▪ y ^e old law of Alciat cap. 39. the Lumbards gaue first vse, & the expres words of the Normā Custumary are, qu' ils ne puuent auoir a [...] ­tre instrument agreiuer l'ung l'autre fors l'escu & le [Page 30] baston. Vppon which wordes, in respect of their identity with the English vsage the ordi­nary Cust. Norm. cap. 68. & l'or­dinaire glosse sur c [...]o. glose is worthy of obseruation▪ thus it speakes. Ce text ne parle, ne s [...]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 cheueu [...]x rougnes par dess [...]s les oreilles, vnlesse that where it is said Uide. 1. Hen. [...] fol. 7 [...]t 9 Hen. 4. fol. 4. b. & cap. vltimum in [...]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 pun [...]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 [...]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, [Page 31] 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 A [...]alls of the English lawes, and (if I forget not) the least plurall number doubled, comprehends as many as are therein reported with ensuing 8 Ed. 3▪ Itin. North. tit. Iudgmēt. 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.

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 Bucha­nā. 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, [Page 32] 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 Stouaeū 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 VVal­ [...]ngham in Ris. 2. pag. 237 [...]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 iuridi [...]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 quenquā Duello confligere, si Constabulario & Marescallo regni perantea fuisset notificata, et in e­orum presentia duellum acceptatū. Day was appoin­ted, and the place at Westminster. An exceeding conflux of people was from all parts of the king­dom. Rege cū proceribus & regni cōmunitate ingres­sis provt moris est (saith my author) miles intrat ar­matus▪ [Page 33] 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 [Page 34] 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 [Page 35] 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 [Page 36] twixt the iurisdiction here discouered, and that in the former examples collected from our law­annalls and old writers, separate disquisition shall endeuour reconciliation.

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 [Page 37] 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, ius (que) 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 home a responder a icell.

Thus, vpon due conference of the former examples with these opinions, and statute lawes, [Page 38] together with some later credit-deseruing au­thority Lambard. in [...] & Fernoeus in lib. de nobilitatis gloria pag. 312. cum. 5. Mar. [...]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 Vide verò Th. VValsing­ham. p. 357. & 1. Heyward in vit [...] Henrici. 4 pag. 92. ar [...]ic. 26. ne [...]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 Florēnt. 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 Lambard. in [...]. De familijs quae honoratissimo insignes fuerūt isto titulo▪ seu officio consulas G. Camden in Comit. Essexiae & Heresordiae, ac etiam in prouinci [...] Mo­numethensi, addas & 6. Hen. 8. K [...]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 [Page 39] 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. Me [...]ula in cosmog. part. 2 lib 3 cap. 15. Uide Paulum Diaconum. li. 2. cap 9. de gist. Longobardori [...] 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 hāds 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.

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 cō ­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 [Page 41] 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. concl [...] 56. Mutio Iustino­politano del Du­ello. lib. 1. ca. 16 after sixe monthes (which is the time of instance for the appellants proceeding [...]) 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 tu [...]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 sunne­set, 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 [Page 42] 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. 56. at (que) haec vetus Anglorū Consuetudo quam babes in lib. impress. de honore & ar­mis. lib. 4. cap. 8. at the defendants election, but rather indeed at the Courts appointment) to bee prefixed within fourty dayes, both parties ought to ap­peare in the field within the listes; which are quadrangular with gates at each end (chosen in some spacious plaine,) adioyning where-vnto is pitched a seemely pauilion (saith Ferne) of Gules, as a iudgement seate of the Constable and Marshall; at their feete a competent num­ber of experienced Knightes with a King of armes and a Doctor or two of the ciuil lawes, all for assistance in aduise to the Court.

The Appellant and his procurator first come to the gate on the rîght end of the listes, banded with his Esquiers clothed in his coullors, and ar­rayed with his armes waiting on him. The Con­stable and Marshall demaund by voyce of Here­hault what hee is, and why hee comes so arrayed? Vppon his answer, and discouery of his face by remouing the visor of his head-peece, hee is ad­mitted, and by a Knight, with an Herhault of the Prouince, conducted into the listes, and placed before the iudgement seate on the right hand, in like sort and conuerted sollemnity is the De­fendant placed with his face opposite to his ad­uersary Glosse ordi­naire sur les customes, cap. 68. dist. 4. on the left side. The glosse vppon the Norman customes say que la cause est pour ce que le dextre partie est pluis digne & le sinistre [Page 43] moins digne. Search is made by the Knightes both of equality of their weapons (which are also at the Defendants election so that hee con­fine his choyce within Auncient, Vsuall, and Military, although Omnium more receptum est (sayth Alciat) nobili et generoso viro Alciat. cap. 39. & 40. Uide superius. cap. 8. magis conuenire, vt eques & quidem loricatus congrediatur quam mercenariorum peditum mo­re prodeat, cum equestris militia nostris mo­ribus dignior sit & in nobilium vsu frequentior. Solent autem (si aliter conuentum non sit) in cam­pum omnia geminata arma prouocati deferre, vt eo­rum quae ipsi in procinctu elegerint paria aduersarijs per magistros seu aduocatos dari possint▪) as also whether they haue any inchauntments, or ma­gique assistance for the victory.

Vppon sound of a Trumpet the Apellant and Defendant are seuerally demaunded; who in person present, the Register to their procu­rators, after recitall of the proces; Vous Parains saches rien dire en empeachment del combat? The Procurators affirming that they admitte all, it is demaunded of the Appellant if hee per­sist in his first purpose, and likewise of the Defendant; both affirming, the Apellant knee­ling layeth his right hand on the Euangelists, and with his left taketh the Defendant by the right.

Then the Register. I. R. Apellant, what sayest thou to S. T. Defendant?

Here-vpon the Apellant briefly rehearseth [Page 44] his chartell of defiance to the Defendant with a concluding oath for the truth of his quarrell, to which the Defendant è conuerso reciting his de­fence, with deniall and oath respectiuely applied, giues answer, the beginning of both formes be­ing thus.

Heare you this my Lordes, all true Knightes and Fern. lib. de gloria nobilit. pag. 327. Gentlemen bearers of armes, and thou S. T. Defen­dant, &c. The conclusion; And that my quarrell (or defence) is true, neither haue [...] done any thing whereby the Law of God and of Knighthood might be depressed, and the Law of Sathan enhaunsed, so helpe me God.

All this finished, the parties are sette a part and prepare them-selues to the battell, an Here hault pronouncing soiet labattaile grauntus & victorie a ceux que droit, with proclamation, that none bee so hardy, as by motion, speech, or crying out to discomfite the Combatants or disturbe the Combat; then immediately an Officer at Armes proclaimes, Approuer, gardes vostre challenge, & vous defendour, gardes vostre de­fence. Vppon the sound of the alarme the bat­tell begins.

The time or instance (as the Iustinianists call it) of the Combat is an artificiall day from sun­rising (when the listes are to bee entered) vnto sunne-set, & licet aliqui (sayth my Author) vs (que) Alciat. cap. 41. de sing. certam▪ Smith▪ de re­pub. Ang [...]or. lib. 3. cap. 3. ad stellarum apparitionem permanendum existi­ment, tamen receptior est sententia vt simpliciter oc­casus expectetur. If the Apellant ouercome not [Page 45] the Defendant within that time, the Defen­dant is deemed guiltlesse of the imputation. But ben protebbe ( Mutio Iustinopolitano telleth Mutio. Iustino­politano. lib. 2. cap. 12. mee) la patente del campo esser stata ispedita con tal forma, che per la partersi del sole la bataglia non si dourebbe partire, o il seguente giorno si dou­rebbe renouare.

Hee to whome eyther vppon default, (which preiudices the approuer also) or performed Combat, the victory is adiudged, shall after re­quest of his procurator to the Constable and Marshall be publikely declared Victor.

But by the way obserue that it suffices not that a superiority appeare onely in their man­hoods, Duelli enim is est (my Author so sayes) finis vt alter vel pereat, vel dedititium se fateatur. Beuther. concl. 65. Alciat. cap. 42. Ante id factum, licet alter videatur superior, ta­men propter bellorum casus, quibus quandoque propio­res victis sunt victores, non dicitur alter superatus; so that eyther Death or Disdict, as they call it, which is yeelding or confession of his guilt, must be the finall issue whereon perfect Victory can be Fern. lib. de gl. nobil. pag. 334. allowed. Then shall the Victor with an honora­ble attendance of Knightes and men of armes mounted, enter the field and thrise march round the listes, and shall take with him the whole pro­cesse of the chartel, defence, issue and iudgement, sealed with the Court seale in perpetual testimo­ny Beuth. conclus. 65. arg. L. F. C. de calūniis▪ et C. de accu­sat. L. F. of his performance and maintained honour. Morte non secuta, (saith Beuther) aut disdicta non extorta, iudex pugnae contra prouocantem [Page 46] pronunciabit eum scilicet capituum esse prouo­cati, eo modo quo prouocans deuictus fuis­set aut confessus prouocantis victoris captiuus. Of him that yeelds, permissum est victori (I haue [...]lciat. cap. 43. good authority for it) arma, vexilla, ephippia, equos, armillas, sibi habere.

But howsoeuer Time and the Imperials haue hereof iudged, not onely Christianity now excludes the Lawes of captiuity, but also Rea­sons of Chiualry which you haue in Mar [...] de Beraudire. part. 1. cap. 24. la Beraudiere Lord of Mauuoisin, who agrees notwithstanding that the armes of the yeelding Combatant are due as yeelded with his body, & s'il est tue son enemy le peut despouiller et les doit emporter come estant les vrais marques de sa victoire & n'en doit estre empesche. So much for the generall forme of the obtayning, cleere procee­ding, and performing of the Combat, by the law of armes.

OVr diuision hath his other part of trials of priuate rights and interests, which are either touching Gentry and bearing of coat-armour & such [Page 47] like or concerning right of demesnes & inheritance.

The first of these are vpon controuersies of such nature as were betweene the Lord Grey of Ruthen and Sir Edward Hastings vnder Hen. the Mill de pol. nob. pag. 153. third, for the coate of the family of the Hastings: betweene the Lords Louel and Morley, for the bearing of the Burnells: Richard Scroope, and Robert Grauenor vnder Richard the second. Examples of such titles to ensignes of Nobility tried by proofe on body are that of Sir Iohn Chandos an Bosewell in lib. heraldic. sol. 79 English Knight, and the Lord del Cleremount a French-man for bearing the image of our Lady, with her child standing in the Sunne, which by righte of armes after the battell of Poitiers is re­ported to bee wonne by the English man-hood; and that of Hugh Vaughan Gentleman-Vsher to Henry the seauenth and Sir Iames Parker slaine at VIII. Hen VII. Stouaeus. pag. 795. the first encounter in their combat at Richmond before the King. As these causes and the like, which concerne the differences arising twixt Gentlemen for their bearing, are determinable in the court of Chiualry, so the Duel on them wa­ged is before the same iudges, in such sort as is before shewed, (with respectiue sentence) to bee managed and performed.

The respect, which antiquity in this Kingdome gaue to the trial of right of enheritance by bodily opposition, may be gathered from that old Tenure by which the manner of Scriuelby in Lincolnshire was long since (and for ought I know) is yet hol­den: viz. by graund serieanty, that at the inaugura­tion [Page 48] of Englands Kings, the Lord of this mannor for the time being, or some other in his name, if Inquis. 23. Ed. 3. Camden in Coritanis, & in Cornauijs. pag. 406. & 438. himselfe be vnable, Veniet benè armatus pro guerrâ super vno bono dextrario in presentia D. Regis die Co­ronationis suae & proclamari faciet [...]si aliquis dicere voluerit, quod dictus D. R. non habet ius ad regnūsuum et coronam suam, promptus erit & paratus ad defen­dendum ius Regis & regni sui, & dignitatis Coronae suae, per Corpus suum versus ipsum & alios quoscun (que), which about Edward the third his time was a ser­uice Anni. 1. Rich. 2 in rot▪ pat. edit. in Cromptono de iurisdictio­ne Cur. fol. 85. of the Freuils, but at Richard the second his coronation, vpon claime made to the high Stew­ard, and title of discent by marriage shewed, was allowed to the Dimocks which now hold it.

This institution offering (at least for fashion) to military iudgment, the defence of the supreme right to the English Diadem, hath beene in more earnest obserued in debates of priuate interests, the ancient custome of England alwaies allowing that as well for possession of enheritance (in the actions which the Lawiers call Droit p [...]tent, droit d'auouson, Quo iure, Rationabilibus diuisis, and such like, which aime at the meere right of the thing demanded) as for defence of life or honor, [...], liberty should H [...]siod. in [...]. bee giuen to the defendant of prouocation from Iupiter and Mercury, (prouided he omit the sharp) to the God of armes. The order whereof, and perticuler performance, we next enquire after.

THe antientest Combat offered in such ciuill causes, that I haue read of, was in Richard Ceur de Lions time, to one William Basset, vpon demand by one Emme de P. of a Knights fee in Corfeton in Mich. 6. Rich. 1. rot. 3. ap west. Wiltshire, where Willielmus dicit quod sunt de vno stipite & ideo non debet inde probari. Where note that the demaundant in her Count, after disclo­sing her right, kept that order which you haue in Glanuill, & hoc prompta sum probare per hunc homi­nem Glanvil. lib. 2. cap. 3. meum liberū I. S. & si quid de eo male contigerit per illū, vel per illū tertium, & quot voluerit (saith he) VVest. 1. cap. 40. ita poterit nominare, sed vnus tantū vadtabit duellū, qui hoc vidit, vel audiuit, which was by act of par­lament afterwards altered, vel per alia veiba sic, & hoc paratus sum probare per hunc liberum hominem meū I. S. cui pater suus iniunxit in extremis agens, in fide qua filius tenetur patri, quod si aliquando loque­lā de terra illa audiret, hoc diracionaret sicut id quod pater suus vidit & audiuit. Thus it seemes in those dayes it was the course for the demandant, to of­fer his proofe in his Count at the Barre by the bo­dy of his free-man, but so that it rested alwaies in election of the tenant (so the Lawiers call the de­fendant in such case) to ioyne issue vpon the of­fer, or cast all vpon the Kings graund assise; as the same author more largely declares. But the forme [Page 50] since those times (and that most frequent in the Law [...]annalls) hath beene to omitt the offer of the battell in the Count, in lieu whereof a generall clause of tendering suit and proofe, is the common inserted conclusion; herevpon the Tenant (with formall defence of his right premitted) answers: and this right he is ready to prooue by the body either of himselfe or his free-man there present, with such ensuing words, as after Glanduills descrip­tion, the demaundant concluded his Count with. If exception hinder not, the demandant replyes (with allowance of emparlance to prepare his champion) recounting his first declared right, that hee is ready to prooue the same by his owne or the body of his free-man there present, with particular names, and formality of pleading pur­sued. Vpon demaund by the Court each of the Champions deliuer in their gloue (which they be­fore hold in their right hands, as they are led by the Parties serieants) as tokens of mutuall chal­lenge Annal. Stouaei pag. 1133. (yet it is reported, that in Paramours case vnder the late Queene Elizabeth, the champion of Haec omnia colligas licet ex annal. iuris Anglic. 4. Ed. 3. fol. 41. 29. Ed. 3. fol. 12. 30. Ed. 3. fol. 20. 1. Hen. 6. fol. 6. 13. Eliz. Dy fol. 301. & ex annalibus Iohannis Sto­uaei pag. [...]133. the defendant only threw downe his gloue, which his aduersary in acceptance of the challenge tooke vp and brought before him into the lists.) The Court further demaunds of the demaun­dants champion, Will you vpon this right aduenture your body? hee affirming: his aduersaries gloue (so I vnderstand it) is deliuered to him, & respectiue­ly in like sort the other is ordered; with a com­mandement for re-deliuery of the gloues. At the [Page 51] same time, or (if the Court thinke fitte, at some other day giuen) the champion of the tenant is commanded to come ouer the barre into the Court, bare-head, vngirt, vncloakt and bare-foote, and commanded to kneele downe on the left side; the other champion likwise in euery respect, and kneeles on the right side; the court demands of the Serieants if they know any thing why these champions are not fit for the combat? Which admit­ted, the gloues are redeliuered to them, within eue­ry finger a penny (which they were commanded by Iustice Thorp to offer en l'honneur des cinque plates que dieu suffre.) Nothing being mooued touching misioyning the issue, or mispleading, iudgement is giuen with Cest Court agard que la battaile soit, such a day next comming, with place conuenient ap­pointed. The Champions were wont to bee sent to seuerall churches, there to inuoake the aide of some Saints to the assistance of their victory, with charge also, that they be not suffered in the meane time, to haue any speech together before the lists entred. The Champions find pledges for their per­formances; the parties take charge to haue them prepared fit for the combat against the day apoin­ted. Lists are made in some spatious plaine, some twenty paces square, with a tribunall for the Iud­ges adioyning; into which at the prefixed time after the court set, and by proclamation fi [...]st the demandant, and then his champion demanded, the champion enters the lists clothed at his discreti­on, but bare-legged from the knee downeward, [Page 52] bare-headed, and bare-armes to the elbow, lead by a Knight carrying a baston gules of an ell length, a yeoman carrying his target of double leather and, after three respectfull and solemne congies to the Iustices, is placed on the right side of the court, in like manner his aduersary, in all equallity of forme, placed on the left side. The selfe same ceremonies of proclamation and oath, as in a cri­minall Duell before the Iustices aboue recited, here vsed, nothing remaines but the next succee­ding hand-strokes. I obserue to you by the way, that in an old manuscript of P. 6. Ed. 2▪ in a writ of right betweene Thomas of Ailesthorp against the Abbot of Fountaignes, the Champion was brought to the bar in the before declared order, and also descheuilé oue vn paire des gaunts plies en son maine dextre. Touching his being deschiuelè remember what the Norman customes haue Chartam istam ann. 42. Hen. 3. confectam in ter collectanea sua trascriptam ostendit mihi Nicolaus Charles Lancastrensis faecia [...]is quem studia mea bene merentem libenter agnos­cunt. before also discouered, to which, adde the testi­mony of an old deede made in the time of Henry the third, whereby one Henry de Ferneberg, dictus marescallus did bind him-selfe to the Abbot of Glastenbury, to bee his champion at all times for the mannors of Pucklechurch, Kranemer, Blackfort and Winsscomb and other possessions against the Bishop, Deane, and chaper of Bath and Welles and a­gainst any chosen champions by them, pro trigin­ta marcis sterlingorum whereof the Abbot was to pay him tenne markes at the time of waging the battell, & in-tonsione meâ (saith the deed in the first person) 5. marcas.

[Page 53]Vpon determination of this combat, as in the other of appeales, finall and peremptory iudge­ment is to be giuen, ( quae enim (saith Glanuill) per Glanuil. lib. 2. cap. 3. duellum fuerint terminata perpetuam habent firmi­tatem:) and the vanquished without death to bee iudicially noted with perpetuall infamy.

Examples of battels fought, and iudgements giuen on the victory are very rare or rather are 4. Ed. 3. fol. 41. not in our published yeare-bookes, onely about or two is aduentured in Ed. the 3. his time, in a writ of right betweene Peuerell and Sherley. In the late Elizabeths time composition preuented the intended concourse. But in an ancient writ­ten parchment report of the later yeares of Ed. the 1. I haue seene in a droit patent by Iohn de Croke, Richard de Gurney, & Godefrid de Bello-mont, for the mannor of Greton in Suffolke, against the Abbot of S. Edmundsbury before Simon of Rochester and his Associats Iustices in eire there at To [...]hull, that the Abbot offered battell for his defence by his Champion Robert de Mutford, the demaun­dant ioyning with him by the body of Robert fitz-William le Bret: Quo die venerunt partes serut entes armati, & fuit Duellum inter eos armatum, & percussum, & seruiens praedicti Abbatis conuictus fu­it & interfectus; and there-vppon a finall iudge­ment was giuen for the Demandants recouery.

With short recapitulation thus I conclude; that, from antiquity Combats of all sorts haue procee­ded; that from the Lumbards and Northerne people, whose posterity filled this Kingdoms cōtinēt, the [Page 54] iudiciall sort were hither first deriued; that y ^e cau­ses were either criminal or ciuil, & both of diffe­rent natures, and belonging to different iurisdicti­ons, and so by seueral formes of Combat haue bin of right triable; which formes in generall view are here described. Of particular exceptions to the Appellants, or sauing defaults in the one, or to the Champions or cause-selfe in the other, or any of them, the treatise is too particularly disposed for the designe of this collection; which aimes wholy at the general nature, and forme, & antiquity of the Duello performed, omitting to those which haue largely discoursed it al in­terposed obstacles and nicetyes of inquisition?

— Pax vna triumphis Sil. Italicus. lib. 11. Innumeris potior.—