heat, and that brings the lie, and that brings a challenge, and then comes the loss of their lives. If Xerxes when he saw that great army, wept upon this thought that in a hundred years they should be all dead, did well, can you blame the King if his heart abounding with clemency grieve to think that by the Duel no man can be safe?

His Majesty gave me two charges: one to proceed without respect of persons.

The last example, brought by my Lord Hubbard at the King's suit, between mean persons, did produce a great deal of good respect; and this is at the party's suit. But it never will be well till these ductores capita alta ferentes may be brought at the King's suit and touched in this case. No man shall give greater respect unto great personages than I will be willing to do in other cases: and yet here, in respect of my duty to the King and respect of the safety of the kingdom, I hope I shall not know a coronet from a hat-band, and the King hath given me charge that I shall not take liffe nor yet desist because the marshals of honour handle the case; for there is a double respect. Their proceeding is for the point of reparation of the honour of private parties. But the Star Chamber doth handle wrongs offered to my law and my honour, saith the King; for he that challengeth the party challengeth the law of the land, and they are aforehand with the law.

For the other offence in general, the Libel, I will not speak long. A libel is an offence when it is brought hither, not so much relating to the party in the libel offending, as well said at the Bar, as it tends to the public disturbance and wrong of the State. Salomon saith a good name is like a good odour; a good

in the compassion of his army, and a fit contemplation for high spirits et capita alta ferentes. Therefore as this had been the contemplation of his Majesty, so should it be his protestation in his place hereafter, to choose to prosecute men of the highest rank, if they offend in this kind; and in these kinds of offences not to know a coronet from a hat-band. Whosoever doth send a challenge to a man doth send a challenge to the law for want of sufficient remedy for honour. And letters or libels in this kind that tend to provoke a challenge tend to a public destruction of the peace. A good name (saith Solomon) is a good odour: and a libel is a common nuisance or stench over a whole country. If a man call another Traitor he 1 So in MS. It should probably be "and wept," etc.

2 So in MS. I cannot guess what word was meant. Perhaps "offe."

ointment casts a fragrant smell; and contrary a libel is like a common nuisance that casts an ill odour and spreads itself abroad to the hurt of all. I beseech your Lordships to mark, is it like a case of a word? As if I call a man a Traitor, he may bring his action of the case, or if he be a Peer of the realm, he may bring his scandalum magnatum, and may justify; and if it be a matter of scandal, not of slander, then nil capiat per breve. But if it be a libel made to defame, it scars not nor skills not whether it be true or no. If it be a libel it is enough; except in matter of aggravation; as it is well set down by Sir Edward Coke in his case of L. P. which is Lewes Pickeringe. So much my Lords for the general.

I will not hold you long, but will tell you what I have noted. First, it is very true that this same letter is not directly nor appertly a challenge, but it is an invitation to a challenge: and (as Mr. Serjeant Crew said elegantly) it is a challenge to a challenge.

The King's edict will out at a window if this be suffered for I will but put a si in the challenge; as to say, if you have a mind to fight with me then send me your man or your writing. I stand not upon the definitive words of a challenge: it is that which conduceth to a combat or duel.

The accepting of a challenge is under the King's Edict, and it is likewise punishable by the Common Law before the Edict.

Because the Defendant hath made two subscriptions, therefore he guides us well. The first contains the lie; it is not the remedy (truly applied at the Bar) presently to go and complain; but first spices it with this, that he will maintain it with his life. What imports that? And then the second part of his letter [is] not an incitation or provocation, but a direct and plain preparation to a challenge. Yet I must tell you had it been the first letter, not in respect of the lie but the libel, if a man should may have his private action for it; and he that speaks it may justify it as true. But a man so called by a libel, that cannot be justified: for it is no matter whether it be true or no: for that it is a public kind of disgracing a man, tending to the disturbing of the common peace of a kingdom. Thus much for the general. Now for the particular.

These letters thus dispersed comprehend an invitation to a challenge, or (as it was said elegantly by Serjeant Crewe) a challenge to a challenge, and a designation to a murder. It is a cartel or a libel, or a lie with a bell rung about it that the whole country might know of it. The noblemen of the

play with words, for it is a lie rung about with a bell, and some circumstances there are, I mark not passages of hounds' heads or horse heads not worth the marking, but I tell you what I find. First it is against a Peer of the realm. And my Lords I beseech you let us keep their privileges, among which this is a great one, that they have a voice in Parliament, and some hundred joined with the Spiritualty have as great a voice as all the realm besides. It is a ponderous privilege of the Peers in making of our laws. The gentry are second Nobles, and God forbid the privileges of the Peers should privilege them to wrong any man: yet there ought a distinction to be kept, and because he is a Peer his wrong is the greater. But if he had been a knight or a gentleman we would have punished him in this case. It is true that some of the letters were cast out after a summons of Parliament. But I cannot found my sentence upon that, because I heard it only shed by the way. It somewhat aggravates the fault that Mr. Markham was beholding to my Lord, and that the lie should be given with a toties quoties. On the other side it somewhat extenuates the fault (for I thank God I hold the balance right) I think my Lord Darcy was to blame first in the occasion in inviting his friend to recreation, to hunt, to pleasure, to society, where men should beware they turn not wine to vinegar.

Besides my Lord was among his servants and in his own troop, the other alone; and therefore my Lord should have been wary lest anything should have passed to give Markham cause of grief or disgrace. The words were a motive to say he might have been beaten to rags. But they were prettily qualified, for my Lord said a child of five years old might have the better of the day, whereby was showed that he meant it fortune; and the rather because it hath been truly said and I have heard that Mr. Markham is by profession a soldier and well known of his valour; for a man of disputative valour had need be more nice of reputation than a man of declared valour. And for my kingdom have a great voice in Parliament to make laws, and it is a great privilege to make laws; and therefore a foul misdemeanour to give any of them the lie in this manner with a toties quoties. Yet (said he) I will hold the balance of reputation even. As noblemen of gentlemen, so gentlemen must have their due respect of noblemen: they are the second degree of honour unto them.

The first message of Mr. Markham to the Lord Darcy for explanation

Lord to fall in comparison of his man, and that he had been beaten and that to rags, these things before the Commissioners of Honour that handle all disgraces of gentlemen in their reputation, will be well remedied. But take it here as it is, I conclude, had this case been after the edict and proclamation, I should have weighed down the offence in a greater proportion than now I shall, and set a fine ratably. But taking the case as it is, no challenge but a step and primus gradus to a challenge, and that upon provocation such as men can scarce bear, being done before the proclamation, when he had as he thought no remedy, and after he knew he had remedy being heartily sorry, and then his modest defence (which hath been very well opened by Mr. Serjeant More and moves me very much), I hold the case such that Mr. Gervace Markham shall pay 500 pounds fine, and imprisonment according to the course of the Court. But for the good behaviour, he being a gentleman of quality as he is, I shall not meddle with it. But if it had been after the Proclamation came forth, I should have meddled with that too. I spare to speak of anything whatsoever appertains to repair the honour or reputation of private persons. I reserve that in all humbleness to my Lords, the great personages in commission touching martial affairs. If I had Beckwith here, I know what I would say to him for his striking and his battery, but that I leave to the Common Law, and the repairing of reputation to those great personages, and to this Court only a fine of five hundred pounds, and imprisonment according to the course of the Court.

The next day Bacon sent Villiers a general account of the day's work, for the King's information; and this is the last we hear of it. of his words was but nice opinion of his own valour. For a man of a disputed valour ought ever to be more careful of his reputation than a man of a declared valour. A man of a known valour should have the less regard. And therefore for this offence of writing such letters and publishing them himself afterwards, he did fine him at five hundred pounds and imprisonment. But in regard of his provocation by Beckwith, and the refusing of satisfaction of the Lord Darcy in those terms which might have been more respective, he being a gentleman and his kinsman, and in regard of his modest answer and refusing all justification in this court, he did spare to bind him to the good behaviour, and did leave the matter of reparation of honour of the Lord Darcy to the Lords Commissioners of the Marshall's Court, and the assault and battery to the common law.

1' of' in MS.

VOL. VI.

I

TO THE LORD VISCOUNT VILLIERS.1

My very good Lord,

I delivered the proclamation for Cloth to Secretary Winwood on Saturday, but he keepeth it to carry it down himself, and goeth down, as I take it, to-day. His Majesty may perceive by the docket of the proclamation that I do not only study but act that point touching the Judges which his Majesty commandeth in your last.

Yesterday was a day of great good for his Majesty's service and the peace of this kingdom concerning duels, by occasion of Darcy's case. I spake big, and publishing his Majesty's strait charge to me, said it had struck me blind, as in point of duels and cartels, etc. I should not know a coronet from a hatband. I was bold also to declare how excellently his Majesty had expressed to me a contemplation of his touching duels: that is, that when he came forth and saw himself princely attended with goodly noblesse and gentlemen, he entered into the thought that none of their lives were in certainty not for twenty-four hours from the duel; for it was but a heat or a mistaking, and then a lye, and then a challenge, and then life: saying that I did not marvel, seeing Xerxes shed tears to think none of his great army should be alive once within a hundred years, his Majesty were touched with compassion to think that not one of his attendance but mought be dead within twenty-four hours by the duel. This I write because his Majesty may be wary what he saith to me (in things of this nature), I being so apt to play the blab. In this also I forgot not to prepare the Judges, and wish them to profess, and as it were to denounce, that in all cases of duel capital before them, they will use equal severity towards the insolent murder by the duel and the insidious murder; and that they will extirpate that difference out of the opinions of men; which they did excellent well.

I must also say, that it was the first time that I heard my Lord of Arundel speak in that place; and I do assure your Lordship he doth excellently become the court; he speaketh wisely and weightily, and yet easily and clearly, as a great nobleman should do.

There hath been a proceeding in the King's Bench against

Stephens's first collection, p. 192. From the original.