DVELLO
or
Single
Combat
:
From
Antiquitie
deriued
into
this
Kingdome
of
England
,
with
seuerall
kindes
,
and
ceremonious
formes
thereof
from
good
authority
described
.
〈◊〉
〈◊〉
〈◊〉
〈◊〉
〈◊〉
LONDON
,
Printed
by
G.
E.
for
I.
Helme
,
and
are
to
be
sold
at
his
shop
in
Saint
Dunstans
Church-yard
,
in
Fleet-streete
.
1610.
V.
CLARISSIMO
D.
EDWARDO
CARRELL
ab
Harting
EQVITI
AVRATO
DICAT
MONVMENTVM
ET
PIGNVS
AMORIS
.
J.
S.
TO
THE
READER
.
ΕΥΦΗΜΕΙΝ
.
REader
,
I
open
not
a
Fence-schoole
,
nor
shall
you
heere
learne
the
skill
of
an
encounter
,
or
aduantagiously
in
the
lists
to
trauerse
your
ground
.
Historicall
tradition
of
vse
,
and
succinct
description
of
ceremony
,
are
my
ends
;
both
deduced
from
the
Auncients
,
Heraclides
Ponticus
.
but
without
proselenique
affectation
.
My
aymes
shall
take
him
for
an
aduocate
,
which
long
since
affirmed
the
full
pleasing
Syrens
to
bee
but
allegories
of
antique
Records
:
indeed
I
thinke
his
speech
was
beyond
his
proofe
,
but
the
God
of
Poets
could
not
with-out
〈◊〉
〈◊〉
〈◊〉
〈◊〉
〈◊〉
,
by
〈◊〉
〈◊〉
〈◊〉
〈◊〉
〈◊〉
,
expresse
the
best
of
his
Phaeaces
.
Echeneus
in
Odyss
.
〈◊〉
.
And
I
dare
av●w
it
,
hee
which
distasts
true
primordiall
deduction
,
falls
often
into
that
couert
dotage
of
,
Errabo
potius
,
quam
perductet
quispiam
.
Plaut.
in
Mo●icll
.
Auncient
writ
is
the
leader
in
what
passages
I
haue
drawne
;
all
beeing
but
as
an
Epocha
,
from
whence
the
single
and
simple
motions
of
our
Triplicity-Lord
Mars
are
(
ommitting
their
effests
and
temperea
influences
)
with
their
differences
calculated
.
Censure
as
Terent.
in
P●●r
.
you
please
;
but
howsoeuer
,
like
old
Demipho's
Lawyers
,
so
(
at
worst
〈◊〉
doubt
not
)
will
my
Readers
.
With
this
comfort
I
regard
all
thumb-turning
,
and
feare
not
the
truly
iudicious
.
Best
of
the
supreme
aspects
,
bestow
their
raies
on
you
.
From
the
I.
Temple
,
this
x.
of
Decemb.
CIODCIX
.
CAPITVLORVM
ELENCHVS
.
-
1.
The
name
and
notation
of
the
Duello
.
cap.
1.
-
2.
Of
Extraiudiciall
Duells
.
That
for
contracting
the
aduenture
of
a
greater
warre
into
a
lesse
number
,
it
hath
bene
by
the
Aunciens
vsed
,
and
by
the
Iudicious
without
controuersie
allowed
.
cap.
2.
-
3.
For
proofe
of
Manhood
also
,
in
diuers
formes
,
and
vppon
seuerall
occasions
,
vse
of
it
is
found
both
in
the
monuments
of
inmost
antiquity
,
as
also
in
the
later
ages
,
and
alwaies
for
this
purpose
,
as
dedicated
to
Honour
,
and
by
the
Princes
authority
.
cap.
3.
-
4.
A
light
touch
of
single
Combats
extraiudiciall
vpon
quarrels
,
according
to
some
that
authentiquely
treat
of
them
,
and
especially
of
English
and
French
Custome
.
cap.
4.
-
5.
First
authors
of
the
Iudiciall
Duell
:
where
admitted
:
the
Church
of
Romes
inhibitions
against
it
.
cap.
5.
-
6.
Whence
England
receiued
it
:
if
from
the
Normans
?
cap.
6.
-
7.
The
diuision
of
the
Duell
iudiciall
,
as
of
iudgements
:
the
forme
of
the
Criminal
Duell
,
by
the
common
law
,
till
the
sists
entered
.
cap.
7.
-
8.
What
Weapons
or
armour
is
to
bee
vsed
by
like
testimony
onely
:
the
Successe
of
the
Combate
and
thereon
Iudgement
.
cap.
8.
-
9.
A
collection
of
diuers
examples
out
of
the
English
histories
of
combats
touching
defence
of
imposed
crimes
:
with
some
particulers
of
their
reported
formes
and
euents
.
chap.
9.
-
10.
Who
are
the
Iudges
,
and
haue
iurisdiction
of
the
combate
.
cap.
10.
-
11.
The
forme
of
obtaining
,
cleere
proceeding
,
and
performing
the
Combate
by
authority
of
the
law
of
armes
in
the
Court
of
Chiualry
,
and
that
in
England
.
cap.
11.
-
12.
Priuate
wrongs
determined
by
the
Duell
:
and
they
eyther
touching
armes
and
gentry
,
or
right
of
land-inheritance
.
cap.
12.
-
13
Combate
vpon
Right
of
inheritance
in
land
possessions
how
granted
,
prepared
,
determined
:
with
iudgement
on
them
,
and
a
recapitulating
conclusion
.
cap.
13.
The
name
and
notation
of
the
DVELLO
.
CHAP.
1.
THe
name
(
for
the
true
notation
of
the
subiect
is
in
no
treatise
to
bee
neglected
,
but
the
very
auspicy
of
letter-labour
,
by
logicke
doctrine
,
is
thence
to
bee
taken
.
)
of
the
Duello
or
Duellum
is
after
some
quasi
duorum
bellum
,
while
others
iudge
that
this
deriuation
stands
rather
conceited
vpon
the
affinity
of
similary
sound
in
pronunciation
,
then
true
criticisme
.
Authentique
writers
of
the
Latine
haue
Duellum
vnlimited
in
number
,
and
of
equall
large
signification
Horat.
epist.
lib.
1.
ep.
2.
Liu.
lib.
1.
with
Bellum
;
Graecia
Barbariae
lento
collisa
Duello
;
hath
Horace
:
and
likewise
in
Liuy
.
puro
,
pioque
Duello
quaerendas
res
censeo
,
saith
one
of
the
Senators
vpon
his
aduise
to
Ancus
Martius
.
Perduellis
also
in
old
Ennius
,
keepes
like
ranke
with
Hostis
,
Perduellum
,
duellum
&
bellum
,
being
vpon
learned
Varro's
testimony
,
and
in
Plautus
but
synonomyes
Varro
de
ling.
lat.
lib.
6.
Plaut.
in
Amphitryone
.
Fest.
in
verb.
Duellum
.
Du.
apud
antiquos
saepius
in
B.
transiit
.
quod
vide
apud
P.
Merulam
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.
siquidem
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
[
](A11870-e11360-b)*
*
Hominum
in
ipso
textu
.
rerum
gratiâ
,
repertasunt
,
quae
si
alio
quolibet
modo
intelligantur
,
nihil
interest
saith
the
Emperor
.
Truth
and
the
application
of
this
word
Duellum
to
single
fight
,
haue
had
both
one
father
(
especially
in
this
Kingdome
where
time
both
establisheth
and
abrogateth
.
)
It
were
therefore
iniury
in
mee
to
offer
cause
of
breach
to
their
sister-hood
,
or
to
bastard
the
one
,
times
hoary
age
being
contrary
to
,
and
far
from
all
iust
imputation
of
naturall
weaknesse
.
The
Duello
then
(
you
may
vse
at
your
pleasure
any
of
the
other
names
)
is
the
bodily
opposition
of
two
combatants
,
both
ayming
at
victorious
successe
.
Other
and
diuerse
are
the
definitions
of
it
among
Ciuilians
,
which
for
the
most
part
call
it
,
not
Pugna
duorum
,
but
duarum
partium
citra
formam
belli
dimicantium
,
as
vpon
the
example
of
the
Horatij
and
Curiatij
,
in
the
Romaine
historie
,
which
exceeded
vnity
on
both
sides
Doctor
Beuther
Beuther
.
disp.
de
duel
.
concl
.
1
concludes
.
His
definition
is
the
last
(
as
I
take
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
&
differentia
specifica
,
cannot
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
correct
,
you
may
chaunce
as
soone
to
erre
as
another
,
but
to
your
correction
with
respect
I
submit
me
.
Of
extraiudiciall
Duells
.
That
for
contracting
the
aduenture
of
a
greater
warre
into
a
lesse
number
it
hath
beene
by
the
Ancients
vsed
,
and
by
the
iudicious
without
controuersie
allowed
.
Chap.
2.
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
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
)
vtriusque
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
mention
;
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
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
,
victoremque
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
.
For
proofe
of
Manhood
also
in
diuers
formes
,
and
vpon
seueral
occasions
vse
of
it
is
found
both
in
the
monuments
of
inmost
Antiquity
,
as
also
in
the
later
ages
;
and
alwaies
for
this
purpose
as
dedicated
to
HONOR
;
and
by
the
Princes
authority
.
Cap.
3
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
siquidem
plura
velis
,
adi
Natalem
Comitem
.
lib.
5.
Mytholog
.
cap.
1
▪
&
seq.
whose
saleable
blood
the
Amphitheaters
sandy
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
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
meritaeque
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
.
Nunc
opus
est
animis
infestos
tollere
cestus
Stat.
Theb.
6.
Comminus
haec
bellis
&
ferro
proxim●
virtus
.
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
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
Tacitum
.
l.
2.
annal.
&
Su●●oniū
in
Claud.
c.
1.
Militaria
ista
certamina
●un●br●s
dicuntur
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
gratiam
Ducis
;
alios
aemulatio
&
certamen
vt
prouocarent
,
prouocatique
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
alium
occiderit
siquidem
in
publico
certamine
cessat
Aquilia
:
quia
gloriae
causa
&
virtutis
,
non
iniuri●
gratiâ
videtur
damnum
datum
:
thus
much
for
the
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
vertue
.
Which
so
farre
oft
times
proceeded
,
—
Vt
vltima
diuideret
mors
,
Non
aliam
ob
causam
,
nisi
quod
Virtus
in
vtroque
Summa
fuit
—
as
of
Hector
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
,
deque
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
Houeden
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
consueuere
frequentius
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
[
](A11870-e13430-b)a
a
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
[
](A11870-e13490-b)b
b
In
Belgist
Athenoeus
.
li.
4
dipnosoph
.
c.
13
Camden
)
quod
dicam
,
nisirecentioris
esse
aetatis
,
vt
intuenti
facile
appareat
,
Superioribus
enim
seculis
,
cum
virtutis
bellicae
exercendae
gratia
militares
decursiones
(
Torneamenta
vocant
)
frequenter
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
quinque
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
,
qui
terram
habuerit
,
4.
marcas
&
qui
non
haebuerit
2.
marcas
.
Nullus
autem
extraneus
ibi
attorneabit
;
vnde
vobis
mandamus
quod
ad
diem
Torneamenti
habeatis
ibi
,
2.
Clericos
&
2.
milites
vestros
,
ad
capiendum
sacramentum
de
Comite
&
Barone
quod
vobis
de
predictâ
pecuniâ
ante
Torneamentum
satisfacient
,
&
quod
nullum
Torneare
permittant
antequam
super
hoc
satisfecerit
;
et
inbreuiari
faciant
quantum
&
a
quibus
receperint
.
Et
▪
10.
marcas
pro
cartaad
opus
nostrum
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
concessione
31.
Hen
3.
ex
Math.
Paris
.
pag.
981.
a
D.
R.
obtentâ
,
et
voce
praeconia
ex
parte
eius
proclamatâ
,
die
qua
Gulielmum
fratrem
suum
baltheo
cinxit
militari
cepit
vnum
torneamentum
,
apud
Northamtonam
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
Walsingh
.
pag.
49.
●d●
.
nouissimâ
.
(
The
wordes
of
Thomas
of
Walsingham
)
militarem
,
quem
vocant
Rotundam
tabulam
,
of
an
hundred
Knights
and
as
many
Ladies
,
whither
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
Westminster
,
remember
that
about
xxxv
.
of
Hen.
111.
diuers
Knights
appointed
their
Ioustes
at
Walden
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
communiter
&
vulgariter
Torneamentum
dicitur
,
sed
potius
in
illo
ludo
militari
qui
Mensa
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
.
A
light
touch
of
single
Combat
extraiudiciall
vp
pon
quarrels
according
to
some
that
authentiquely
treat
of
them
and
especially
of
English
and
French
Custome
.
Cap.
4.
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
vpon
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
them
.
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
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.
Victorem
.
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
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
Kings-bench
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
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
conclusion
,
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
.
First
Authors
of
the
Iudiciall
Duell
:
where
admitted
.
The
Church
of
Romes
inhibition
against
it
.
Cap.
5.
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
Church-doctrine
,
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
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
,
bellumque
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
,
Hungarians
,
Almans
,
Normans
,
English
&
others
.
But
the
most
common
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
.
Warnfred
.
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
quenque
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
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
,
&
quocunque
alio
nomine
,
Domini
temporales
,
qui
locum
ad
Monomachiam
in
terris
suis
inter
Christianos
concesserint
,
eo
ipso
sint
excommunicati
:
ac
iurisdictione
&
dominio
ciuitatis
,
castri
,
aut
loci
in
quo
,
vel
apud
quem
duellum
fieri
permise
rint
quod
ab
eclesia
obtinent
,
priuati
intelligantur
,
&
▪
si
feudalia
sint
,
directis
Dominis
statim
acquirantur
.
Qui
verò
pugnam
commisserint
&
qui
eorum
patrini
vo
▪
cantur
,
excommunicationis
&
omnium
bonorum
suorum
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
quenquam
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
.
Whence
England
receiued
it
?
if
from
the
Normans
?
Chap.
6.
I
Thinke
it
not
easy
to
proue
this
custome
in
England
before
the
Norman
conquest
;
yet
it
appeares
that
the
ancient
Germans
(
who
were
the
fathers
of
the
English
)
made
some
vse
of
it
,
and
Verstegan
(
in
his
Verstegan
pag.
64.
&
300.
chapter
of
the
old
manner
of
liuing
of
the
Saxons
)
out
of
good
authority
,
numbers
his
Kamp-fight
,
(
whence
comes
our
English
names
of
Kemp
,
and
Campion
,
for
a
Combat-fighter
)
among
the
foure
Ordells
,
which
then
purged
or
condemned
as
mute
iudges
.
Ad
de
herevnto
the
iudgement
of
Guil
le
Rouille
Alenconiensis
in
praefat
▪
â
le
graund
Cust.
du
Normandy
.
William
Rouille
d'
Alenson
,
in
his
Preface
to
the
old
graund
Custumier
du
Normandie
;
making
the
Norman
customes
(
among
which
the
Duell
is
one
)
to
owe
their
originall
to
England
,
rather
then
the
English
to
Normandy
.
His
words
,
because
they
Atqui
,
lector
,
adeas
,
fi
de
his
consulas
,
Rogerum
de
Houeden
in
2.
part
.
annal●um
fol.
346.
&
seq.
G.
insuper
Camdenum
&
Lambardum
in
explic
verb.
&
nouissi
nê
quae
sunt
ab
honoratissimo
&
J.
C.
tissimo
V.
D.
Ed.
Coke
Eq.
aurato
&
priuatorum
iudiciorum
praeto●●
summo
ad
ter●ium
l●brum
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
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
William
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
,
[
](A11870-e15840-b)*
*
Ferri
nimirum
igniti
,
cuius
formam
explicatissime
babes
in
Antiq.
Eccles.
Brit.
&
in
Lamb.
expli.
verb.
aut
Duello
.
It
rests
therefore
,
that
wee
admit
that
the
Normans
,
alias
North
mans
(
being
by
their
first
ofspring
from
the
Norwegian
coast
,
where
this
custome
as
before
is
shewed
,
had
his
breeding
)
were
the
first
authors
of
it
in
this
their
conquered
kingdome
.
The
diuision
of
the
Duell
iudiciall
as
of
iudgements
;
the
forme
out
of
the
Common
law
till
the
lists
intred
(
with
authority
and
examples
)
of
the
Criminall
Duell
.
Chap.
7.
GEnerally
it
being
thus
from
the
antients
brought
into
England
,
what
followes
of
it
also
shal
be
within
England
chiefely
confined
.
As
Cicer
in
orat
.
pro
Cecinna
.
the
diuision
of
iudgements
is
bipartite
,
consisting
eyther
in
punishment
of
misdeedes
committed
against
the
body
of
the
state
,
or
determination
of
controuersies
touching
onely
particular
persons
,
which
in
fewest
wordes
is
expressed
by
Publike
and
Priuate
,
Criminall
and
Ciuill
;
so
(
if
the
Tryall
may
be
denominated
from
the
iudgement
,
)
the
same
distinction
may
bee
admitted
in
the
Duell
,
to
bee
eyther
Criminall
or
Ciuil
:
Criminall
beeing
waged
for
purgation
of
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
.
When
the
Defendant
hath
made
choyce
of
this
purgation
or
tryall
,
presently
(
according
to
those
Auncients
)
so
that
exception
intercede
not
,
surety
is
giuen
on
both
partes
;
on
the
Defendants
for
performing
his
defence
by
his
body
,
on
the
Appellants
for
deraigning
the
battell
;
where-vppon
day
is
giuen
by
the
Court
for
prouision
of
their
martiall
accout
rements
,
and
arraying
them-selues
in
conuenient
armes
(
the
Defendant
continually
remayning
in
safe
custody
;
)
At
the
day
prefixt
,
both
parties
prepared
and
appearing
in
Court
,
the
Apellant
recites
his
appeale
,
and
the
Defendant
his
former
defence
,
verbatim
,
as
at
the
first
.
Then
the
one
takes
the
other
by
the
hand
,
and
the
defendant
with
an
oath
thus
prepares
his
stomacke
to
the
field
.
This
heare
you
whome
I
holde
by
the
hand
,
which
say
you
are
called
by
the
Christian
name
of
Iohn
that
I
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
.
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
West
.
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
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
.
In
Henry
the
fourth
:
in
an
appeale
of
Robbery
the
Defendant
pleads
not
guilty
,
and
this
was
M.
9.
Hen.
4.
sol
.
4.
&
Stanford
.
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
[
](A11870-e16710-b)a
a
Consuetudines
Norm
,
cap.
68.
id
ipsum
quod
superi●res
illi
●t
anti
quiores
,
habent
.
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
.
What
Weapons
or
Armour
is
to
be
vsed
(
by
like
testimony
only
;
)
the
successe
of
the
Combat
,
and
thervppon
iudgement
.
Cap.
8
IF
you
inquire
what
weapons
and
armour
is
fittest
generally
for
Combatants
vse
,
among
Marc
de
la
Ber.
part.
1.
c●p
.
20.
&
21.
Alciat
.
de
sing
.
certam
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
bastons
&
sheilds
,
that
is
,
Fustes
&
scuta
▪
the
old
law
of
Alciat
cap.
39.
the
Lumbards
gaue
first
vse
,
&
the
expres
words
of
the
Norman
Custumary
are
,
qu'
ils
ne
puuent
auoir
a●tre
instrument
agreiuer
l'ung
l'autre
fo
rs
l'escu
&
le
baston
.
Vppon
which
wordes
,
in
respect
of
their
identity
with
the
English
vsage
the
ordinary
Cust.
Norm
.
cap.
68.
&
l'ordinaire
glosse
sur
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
slayne
,
yet
the
formality
of
the
common
lawe
proceeding
,
adiudges
him
to
capitall
punishment
,
that
thereby
his
posterity
may
suffer
the
grieuous
concomitancy
of
his
deserued
infamy
,
and
the
accuser
eit
de
nous
(
saith
one
in
person
Britt
.
fol.
43.
Victum
non
occidat
Victor
sed
regium
potiùs
expectet
iudicium
▪
Prisot
.
37.
Hen.
6.
fol.
20
▪
b.
of
the
King
)
graund
guerdon
.
Rare
are
the
examples
of
battells
waged
vpon
Criminalls
in
the
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
[
](A11870-e17090-b)a
a
8
Ed.
3
▪
Itin.
North.
tit
.
Iudgment
.
225.
&
19.
Hen.
6.
fol.
47.
7.
Ed.
3
fol.
310.
25.
Ed.
3.
fol.
42.
performance
.
What
histories
or
other
notes
afford
of
that
nature
is
fittest
by
itselfe
to
be
collected
.
A
collection
of
diuerse
examples
out
of
the
English
Histories
of
Combats
vpon
imposed
Crimes
,
with
some
particulers
of
their
formes
and
euents
.
Chap.
9.
VNder
William
Rous
,
one
William
de
Hou
or
Owe
Malmesh
.
lib.
4
de
gest
.
reg.
&
Flor.
Wigornien
.
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
Buchanan
.
Rer.
Scotic
.
lib.
7.
reg.
87.
by
one
Orgar
an
Englishman
,
that
hee
priuily
boasted
him-selfe
and
his
allies
,
to
bee
the
onely
true
heires
of
the
Crowne
;
by
Champion
on
Edgars
part
it
was
tried
in
the
lists
,
and
the
false
accuser
foiled
.
Henry
of
Essex
,
Standard-bearer
to
Henry
the
Flores
hist.
lib.
2.
pag.
46.
Matth.
Paris
in
Hen.
2.
pa.
133
second
,
in
his
Welsh
expedition
,
was
accused
by
Robert
de
Monte-forti
,
that
he
forsooke
his
colours
in
the
field
.
The
Combat
was
their
chosen
iudge
,
the
victory
fell
to
Mountfort
,
qua
de
causa
(
saith
Matthew
Paris
)
Henricus
notam
infamiae
simul
&
exheredationis
iacturam
incurrens
indulgentia
pij
Regis
apud
Radingum
(
where
the
lists
were
)
habitum
monachalem
suscepit
.
That
of
Iohn
de
Viscont
,
and
Thomas
de
la
March
,
Apud
Stouaeum
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
Wal●●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
quenquam
Duello
confligere
,
si
Constabulario
&
Marescallo
regni
perantea
fuisset
notificata
,
et
in
eorum
presentia
duellum
acceptatum
.
Day
was
appointed
,
and
the
place
at
Westminster
.
An
exceeding
conflux
of
people
was
from
all
parts
of
the
kingdom
.
Rege
cum
proceribus
&
regni
communitate
ingressis
provt
moris
est
(
saith
my
author
)
miles
intrat
armatus
▪
insidens
dextrarium
decentissimè
phaleratum
.
Nam
appellator
debet
ingredi
primò
locum
,
defensoris
praestolaturus
aduentum
.
A
little
time
after
,
the
defendant
is
thus
demanded
.
Thomas
of
Catrington
defendant
,
appeare
to
defend
thy
cause
,
for
which
Sir
Iohn
of
Ansley
Knight
and
appellant
hath
publiquely
&
in
writing
appealed
thee
.
and
thus
thrise
by
an
Herehault
.
At
the
third
proclamation
,
the
Esquire
appeares
mounted
on
a
steed
stratum
regulariter
stramentis
praeferentibus
arma
dicti
Thomae
,
who
,
when
hee
approached
the
lists
,
dismounted
himselfe
,
ne
iuxta
consuetudines
praelij
Constabularius
vendicaret
equum
si
limites
fuisset
ingressus
,
sed
nil
sibi
valet
astutia
sua
,
nam
equus
iuxta
list
as
discurrens
aliquoties
totum
caput
et
pectus
iniecit
vltra
limites
.
Ob
quam
causam
Constabularius
Thomas
de
Woodstock
equum
vendicauit
,
iurans
se
velle
caput
eius
habere
.
viz.
quantum
inter
listas
de
equo
visum
fuit
,
vnde
adiudicatus
est
ei
equus
.
The
Esquire
entring
the
lists
on
foote
,
the
constable
&
Marshall
produce
a
certaine
Indenture
made
before
them
,
by
consent
of
the
parties
,
conteining
the
articles
of
the
accusation
,
which
were
there
publiquely
read
.
Catrington
began
to
offer
exception
at
some
of
them
,
thereby
thinking
to
haue
some-what
extenuated
the
blottes
laide
on
him
.
But
the
Duke
of
Lancaster
seeing
him
in
delayes
,
with
an
oath
openly
menaced
him
,
that
vnlesse
according
to
the
Duello-lawes
hee
would
admitte
all
in
the
indenture
,
which
was
drawne
by
his
assent
,
as
free
from
beeing
taxt
for
insufficiency
of
forme
,
hee
should
bee
presently
drawne
and
hanged
as
a
traitor
.
Wherevpon
the
Squire
ceased
from
his
exceptions
,
and
entended
onely
the
Combat
.
Sir
Iohn
Ansley
,
provt
moris
est
,
(
saith
Walsingham
)
and
after
him
this
Catrington
,
tooke
oath
of
the
truth
of
his
cause
,
that
hee
was
free
from
all
vse
of
Art
Magique
,
that
he
did
not
carry
with
him
any
hearbe
,
stone
,
or
other
kinde
of
experiment
of
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
Walsingham
.
7.
Rich.
2.
fest.
Martini
.
fol.
311.
Edit.
Camdeni
.
regali
iudicio
(
qui
ad
spectaculum
duelli
cum
principibus
regni
sui
consederat
)
tractus
&
suspensus
est
.
Although
the
Queene
and
diuerse
others
very
earnestly
entreated
his
pardon
.
The
appointed
lists
for
the
determination
of
that
great
quarrell
twixt
Henry
Duke
of
Hereford
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
twixt
the
iurisdiction
here
discouered
,
and
that
in
the
former
examples
collected
from
our
lawannalls
and
old
writers
,
separate
disquisition
shall
endeuour
reconciliation
.
Who
are
the
Iudges
,
and
haue
Iurisdiction
of
the
Combat
.
Chap.
10.
BRacton
and
Britton
,
in
their
inserted
treatises
of
the
Combat
,
speake
onely
of
the
Kings
Iustices
;
which
you
must
in
criminall
causes
vnderstand
of
the
Kings
Bench
▪
with
them
agrees
Glanuill
,
in
these
words
.
Ex
quo
fuerit
duellum
vadiatum
,
Glanuil
.
lib.
14
cap.
1.
non
alio
modo
nisi
de
licentia
domini
Regis
,
vel
eius
Iusticiariorum
,
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
or
armory
)
is
not
emergent
within
the
Realme
,
then
if
the
Combat
bee
challenged
,
the
Naturall
Iudges
are
those
two
Noble
Officers
,
the
high
Constable
and
Marshall
of
England
,
to
whome
belong
from
Antiquity
a
Court
called
le
Court
de
Chiualry
,
ad
lites
honorartas
(
as
a
late
writer
Mill.
de
nobilit
.
politic
.
pag.
154.
saith
)
discutiendas
,
iusque
suum
cuique
famae
vel
dignitatis
tribuendum
.
For
this
I
haue
Iudge
Prisots
words
.
For
calling
another
false
,
&c.
No
appeale
(
saith
hee
)
lyes
in
our
law
,
and
by
consequence
no
such
defence
,
viz.
by
proofe
on
body
may
bee
,
for
such
matter
belongs
to
the
Constable
and
Marshall
,
and
they
shall
determine
this
by
the
lawe
Ciuill
:
Where-vnto
Nedham
replyes
,
that
it
is
le
ley
del
terre
,
&
le
ley
nostre
seignior
le
roy
.
This
is
infalliby
confirmed
by
the
act
of
13.
Richard
the
second
,
touching
the
Constables
power
.
Al
Constable
appertient
d'auer
conusance
des
contracts
touchants
faits
d'armes
&
du
guerre
hors
de
Realme
.
Et
ainsi
des
choses
queux
touchent
armes
ou
guerre
deins
le
royalme
,
queux
ne
poyent
estre
Stat.
13.
Rich.
2.
cap.
2.
vide
insuper
stat.
1.
Hen.
4.
cap.
14.
30.
Hen.
6.
fol.
5.
6.
Hen.
8.
Kel
.
171.
termines
ne
discusses
per
le
commen
ley
,
oue
auters
vsages
&
Customes
a
ycelles
mattiers
appertenants
,
queux
auters
Constables
Deuant
ore
ont
duement
&
resonablemant
vses
en
leur
temps
adioustant
a
icel
que
chescun
pleintife
declara
pleniment
sa
matter
en
son
petition
auant
que
soit
enuoy
pur
ascun
home
a
responder
a
icell
.
Thus
,
vpon
due
conference
of
the
former
examples
with
these
opinions
,
and
statute
lawes
,
together
with
some
later
credit-deseruing
authority
Lambard
.
in
〈◊〉
〈◊〉
〈◊〉
〈◊〉
〈◊〉
&
Fernoeus
in
lib.
de
nobilitatis
gloria
pag.
312.
cum
.
5.
Mar.
●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
[
](A11870-e18450-b)a
a
Vide
verò
Th.
Walsingham
.
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
.
Wigorn
.
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
[
](A11870-e18530-b)b
b
Lambard
.
in
〈◊〉
〈◊〉
〈◊〉
〈◊〉
〈◊〉
.
De
familijs
quae
honoratissimo
insignes
fuerunt
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
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
hands
of
that
great
linguist
Ioseph
Scaliger
hath
,
after
others
affirmation
of
as
much
,
lately
obserued
Fra
leitais
scalk
theinana
1.
Now
lettest
thou
thy
seruant
depart
;
(
although
Pacius
turneth
schalk
〈◊〉
〈◊〉
〈◊〉
〈◊〉
〈◊〉
or
peritus
.
)
so
that
Mareschall
with
vs
and
the
French
is
in
notation
but
Smith
in
Dutch
and
English
,
Marphais
among
the
old
Lumbards
,
Protostrator
in
the
Easterne
Empire
,
expressed
(
if
you
will
in
Latine
)
Equorum
Versteg
.
pag
▪
324
,
Curator
,
whereby
(
as
Verstegan
noteth
(
we
may
perceaue
how
names
growne
to
high
dignity
haue
sometimes
taken
their
originall
from
inferior
vocations
.
The
forme
of
obtaining
,
cleere
proceeding
,
and
performing
the
Combat
,
by
the
ancient
law
of
armes
in
the
English
Court
of
Chiualry
.
Cap.
11.
ALthough
not
with
best-seeming
method
,
yet
with
most
compendious
(
for
narrowest
order
in
comprehension
,
)
thus
farre
is
discouered
what
in
briefe
termes
is
thus
connexed
.
That
,
of
Iudicial
Combats
Criminal
,
some
are
for
triall
of
a
particular
obiected
misdeed
,
against
which
the
Common
lawe
by
ordinary
course
proceedes
;
and
of
these
the
iustices
of
the
Kings
bench
haue
Caeterum
actis
Parliamentariis
de
35.
H
8.
de
crimine
laesae
maiestatis
trans
mare
commisso
cognoscunt
Iudices
a
Rege
delegati
&c.
the
disposition
,
as
is
declared
;
others
for
purgation
of
offence
against
military
honour
,
and
transmarine
treasons
(
remedylesse
by
the
old
Custome
of
England
,
)
which
the
high
Court
of
Chiualry
is
to
marshall
by
the
lawe
of
armes
.
The
manner
of
this
,
both
in
proceeding
&
execution
,
is
much
different
from
the
other
,
therefore
of
it
by
it selfe
briefly
thus
.
A
Chartel
contayning
the
accusation
is
exhibited
to
the
iudges
of
Chiualry
for
demaund
of
the
Combat
(
if
the
Apellant
make
choyce
of
a
Martiall
tryall
;
)
the
demaund
is
comprehended
in
the
conclusion
;
That
hee
is
ready
to
maintaine
the
same
by
his
body
.
Truth
of
the
Chartell
,
and
freedome
of
the
Apellant
from
all
purpose
of
malicious
wrong
,
is
by
his
oath
confirmed
.
The
combat
vpon
due
consideration
of
circumstances
graunted
,
denunciation
of
challenge
,
contayning
the
whole
chartell
,
by
officers
of
armes
(
which
was
wont
to
bee
by
some
priuat
persons
)
is
sent
to
the
accused
.
If
vpon
the
pro
cesse
hee
bee
returned
not
found
,
then
the
challenge
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
sunne-set
,
and
proclamations
of
demaund
made
at
noone
and
night
which
is
peremptory
and
finall
)
without
iust
cause
hide
his
head
,
it
is
sufficient
conuiction
,
and
without
all
hope
of
restitution
is
his
honor
attainted
;
wherevpon
(
saith
Alciat
)
some
appellants
carrie
the
pictures
of
such
dastards
about
them
with
exprobration
,
or
their
coate-armour
reuersed
,
or
ignominiously
fastened
vnder
their
horses
tayle
or
with
such
like
disgrace
.
If
hee
stand
to
his
defence
at
the
appointed
time
and
place
,
(
which
by
an
old
constitution
of
Frederick
are
Alciat
.
cap.
6.
Beuther
.
concl.
56.
atque
haec
vetus
Anglorum
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
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
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
sun-rising
(
when
the
listes
are
to
bee
entered
)
vnto
sunne-set
,
&
licet
aliqui
(
sayth
my
Author
)
vsque
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
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
calumniis
▪
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
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
.
Priuate
wronges
determined
by
the
Duell
,
and
they
eyther
touching
Armes
and
Gentry
or
Right
of
Land-inheritance
.
Cap.
12.
OVr
diuision
hath
his
other
part
of
trials
of
priuate
rights
and
interests
,
which
are
either
touching
Gentry
and
bearing
of
coat-armour
&
such
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
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
quoscunque
,
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
.
Combats
vpon
right
of
enheritance
in
land-possessions
,
how
granted
,
prepared
,
and
determined
:
with
iudgment
on
them
.
Chap.
13.
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
liberum
I.
S.
&
si
quid
de
eo
male
contigerit
per
illum
,
vel
per
illum
tertium
,
&
quot
voluerit
(
saith
he
)
West
.
1.
cap.
40.
ita
poterit
nominare
,
sed
vnus
tantum
vadtabit
duellum
,
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
meum
I.
S.
cui
pater
suus
iniunxit
in
extremis
agens
,
in
fide
qua
filius
tenetur
patri
,
quod
si
aliquando
loquelam
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
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
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
,
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
inter
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
.
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
continent
,
the
iudiciall
sort
were
hither
first
deriued
;
that
the
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
.
—
FINIS
.