Varieties: or, A surveigh of rare and excellent matters necessary and delectable for all sorts of persons. Wherein the principall heads of diverse sciences are illustrated, rare secrets of naturall things unfoulded, &c. Digested into five bookes, whose severall chapters with their contents are to be seene in the table after the epistle dedicatory. By David Person, of Loghlands in Scotland, Gentleman.

Sect. 3.

How Combats may bee thought permissible: The relation of a Combat betwixt Iarnacke and Chastigneray, in the Presence of King Henry the second of France; citati∣ons of the Canon law against combats: Example of a Combat where the innocent was killed: that the decisi∣on of all such questions whereupon Duells were permit∣ted, ought to be left to God.

IN the former combats Spanish was more remark∣able then the French; that first it was authorized by an Emperour and then countenanced by him. Wher∣in if any would inferre, that by this I would seeme to authorize Duells;* 1.1 hereafter the contrary shall ap∣peare: But thus much I may say; If any sort of Du∣els should be tolerated in a Common-wealth, I thinke that that which is performed after this manner (wherein as in his Miles gloriosus, Plautus speakes, Pes pedi, dextra dextrae, latus lateri opponitur) it is more dis∣pensable then otherwise to permit men to butcher one another; true valour, strength, dexterity and courage being then put to the essay, although with the hazard of their lives, yet not with the infallible losse of any or both, as in other Combats.

These two examples I have brought in out of the French and Spanish Histories, brieflier couched here then in their owne Countrey Registers, Where they are at length and in their smallest circumstances set downe.

Now as here I allow of the Spanish sort of Duells (if any way to be tolerated) so can I not but disap∣prove the French King Henry the second his admit∣ting and permitting of a Duell, not betwixt two men of a privat estate, nor by themselves in private, neither for any remarkable injury done by one to another; but in the face and presence of himselfe and Court in their shirts, and so to inevitable death of either, or both, and for nothing but a leger or slight French quarrell, as a demanti betwixt two notable persons, of two illustrious houses, Iarnak and Chastaigneray; where the fortune of the fight favouring the weaker for the time, to wit Iarnak, sent his adversary, if not from the field to the grave, yet so sore wounded, that with∣in few dayes thereafter he dyed.

I might have alleadged moe of former ages, but that the neerer our owne dayes things fall out, they bring with them the greater credit to the present times.

Charles the fifth his example may bee thought to be tolerable: and though by the constitutions or ra∣ther permissions of some Princes, Duells have beene tolerated, as particularly when the notoriousnesse of a fact (as of murther) can neither be proved by wit∣nesses,* 1.2 nor oathes of parties, and such other legall wayes; which sort of proofes the Civilians call a vul∣gar sort of probation, as in the Decretalls lib. 2. quest. 5. cap. consuluistis, & cap. De Monomachia, is apparent. Neverthelesse, the civill lawes as well as the Canon, do absolutly condemne them, because say they, it is a fallacious proofe, the order of nature favouring com∣monly the stronger above the innocent. As in the

Decretalls cap. supra citato de purgatione vulgari, is manifest by a case propounded of two,* 1.3 who upon ac∣cusations of theft, challenged each other to Combat, where the stronger having overthrowne the weaker, was found neverthelesse guilty; for the goods in question were at last found in the Victors house.

To say here; What shall a Prince doe when hee is importuned by one for Iustice of such or such a man, for this or the like crimes; but to referre it to a Mono∣machy or Duell, seeing other proofes faile?

I answer, that by such meanes both God and the King are tempted; for if God hath reserved to him∣selfe the discovery of what by all searching cannot be discovered, is not that an intolerable importunity, to pry or search any farther in that, but that the Magi∣strate (all legall proofes being used) doe absolve him, whom secundum allegata & probata hee findeth inno∣cent, and refer to the all-seeing and all knowing God, the punishment of him who is guilty, seeing in his owne time he can by meanes unsearch'd by men, bring about a punishment on him, whom peradventure the civill Iudge hath absolved:* 1.4 for otherwise it should seeme, that we were suing after a miracle, by permit∣ting a Combat for proofe, as was used in Linonia or Lapland in like cases, as may bee seene in the aforesaid Chapter De probatione Vulgari in the Decretalls: for there saith the Canonist; If any crime such as that could not be proved, and that the accused or suspected, cryed that he was innocent, and so stood forth in the avouching of his innocency, hee was forced for the more and farther proofe thereof, either bare footed to tread on hot yron, or else to wash his hands in hot boyling water.

For notwithstanding all the circumspection of Iud∣ges in prescribing equality of armes, and all the ob∣jections which can be thought on, either for prescri∣bing equall quarters to both, or to save both from such treachery and circumvention; Yet can neither of these caveats be so punctually and judiciously set downe, but ••hat the one part may be weaker than the other: nei••her yet have we assurance, that God will e∣ver show his justice in such Combats; because it is written, Thou shalt not tempt the Lord thy God.

Notes

• * 1.1

  What way combats per∣missible if they should be at all suffered.
• * 1.2

  The Canon Law gaine-sa••∣eth their per∣mission, and Why?
• * 1.3

  Example where in a Du∣••ll the inno∣cent was killed
• * 1.4

  We should ra∣ther referre to God the pu∣nishment of a misdeed, which by no legall meanes can be cleared, rather then to a fight.