The Lord Coke to King James, touching trial of Duels out of England.

I Have received a commandment by Mr. Sollicitor from your Majesty, * consisting upon two parts; First, to answer whether I informed not your Majesty, that if two of your Subjects should go over beyond Sea, to fight in a Forreign Kingdom, and there in fight the one killeth the other; that in this case, the same might be punished by appeal before the Constable and Marshal of England. Secondly, if I made any such information, what authority and reason I had to maintain it.

To the first, the truth is, that I did inform your Majesty so, and I well remember, I said then, that it was Dowties Case, your Majesty then speak∣ing of Duels.

To the second, this is by authority of an Act of Parliament made in the first year of King Henry the Fourth, the 14th. Chapter, in these words:

For many Inconveniencies and Mischiefs that have oftentimes hap∣pened by many Appeals made within the Realm before this time; It is ordained and established from henceforth, That all Appeals to be made of things done within the Realm, shall be tryed and determined * by the good Laws of this Realm, made and used in the time of the Kings noble Progenitors; And that all Appeals to be made of things done out of the Realm, shall be tryed before the Constable and Mar∣shal of England for the time being; And that no Appeals be from henceforth made, or in any wise pursued in Parliament in any time to come.

In the late Queens time, a Case fell out upon this Statute; Sir Francis Drake having put Dowtie to death beyond Sea, the Brother and Heir of Dowtie sued by Petition to the Queen, that she would be pleased to appoint a Constable hac vice, to the end, he might have an Appeal against Sir Francis Drake, for the death of his Brother.

This Petition the Queen referred to Sir Thomas Bromley, and the two chief Justices, and others; And it was resolved of by them (which I being of Council with Dowtie, set down briefly for my Learning) That if two Englishmen go beyond Sea, and in Combate the one killeth the Page  194 other, this offence may be determined before the Constable and Marshal of England, and so was the Statute of 1 Henr. 4. to be intended.

But after upon the true circumstance of the Case, the Queen would not constitute a Constable of England, without whom no Proceeding could be.

And I take this resolution to be well warranted by the Statute, and no small inconvenience should follow, and a great defect should be in the Law, if such bloody offences should not be punished, and Your Majesty should lose a flower of Your Crown, in losing this Power, to punish these growing and dangerous offences. I shewed to Mr. Sollicitor, my Report and Memorial of Dowtie's Case, and I shall ever remain,