gave him another thing to hang about his neck. Three days after, he came to me to my chamber, and professed he was now as well as ever he was in his life, and did extremely thank me for the great care I had taken with him. I fearing lest he might relapse into the like distemper, told him that there was none but myself and one physician more, in the whole town, that could cure the devils in the head, and that was doctor Harvey (whom I had prepared) and wished him, if ever he found himself ill 10 in my absence, to go to him, for he could cure this disease as well as myself. The gentleman lived many years, and was never troubled after.

XXXV.

DUEL.

1. A DUEL may still be granted in some cases by the law of England, and only there. That the church allowed it

1. 14. A duel may still be granted &c.] See Selden, Analecta AngloBritannica, Works, ii. p. 949.

But he adds that there is hardly an instance to be found in which this form of trial has been actually used in civil cases, and very few instances in which it has been used in criminal cases.

Blackstone mentions it as still in force in his day.

'The next species of trial is of great antiquity, but much disused; though still in force if the parties chose to abide by it; I mean the trial by wager of battle . . . . a trial which the tenant or defendant in a writ of right, has it in his election at this day to demand.' Blackstone, Commentaries, bk. iii. ch. 22, sec. 5. So too in criminal trials—bk. iv. ch. 27, sec. 3.

These forms of trial, in civil and criminal cases, were done away with by 59 George III, ch. 56.

6

1. 15. That the church allowed it anciently, &c.] Ducange, Glossary, sub voce Campiones' (champions), mentions the 'Campionum oblationes, in Chartâ Manassis Episc. Lingonensis, ann. 1185, quas ii, prius quam in arenam descenderent, Ecclesiis offerebant, quo in duellis Deum sibi propitium conciliarent.'

Also, sub voce 'Duellum,' he shows that—' sacramenta quae in his

anciently, appears by this. In their public liturgies, there were prayers appointed for the duellists to say; the judge used to bid one of them go to such a church and pray, &c. for the victory: and to the other go to such a prelate in such a church, and pray, &c. But whether is this lawful? If you grant any war lawful, I make no doubt but to convince it. War is lawful, because God is the only judge betwixt two that are supreme. Now if a difference happen betwixt two subjects, and it cannot be decided by human testimony, why may they not put it to God, to judge between them, by the permission of the prince? Nay, what if we should bring it down, for argument's sake, to the sword-men. One gives me the lie; 'tis a great disgrace to take it, the law has made no provision to give remedy for the injury, (if you can suppose any thing an injury for which the law gives no remedy) why am not I in this case supreme, and may therefore right myself?

ΙΟ

2. A duke ought to fight with a gentleman. The reason is this; the gentleman will say to the duke, 'tis true, you hold a higher place in the state than I; there's a great 20 distance betwixt you and me; but your dignity does not

occasionibus de more fiebant super sanctam crucem, sanctas reliquias, aut sancta Evangelia, proferebantur coram sacerdotibus vel Ecclesiae ministris.'

Canciani, in his Lex Costumaria Normannica, gives examples of the oaths administered to the combatants that they are using no help from sorcery or magical arts. Leges Barbarorum, vol. ii. p. 395, note.

Muratori shows that judicial combats were held anciently under the full sanction of the Church, and that the clergy were sometimes parties to them, either in person or more often by a champion chosen to defend their cause. Antiq. Italicae, iii. p. 638, Dissert. 39.

Also, on p. 637, 'Tanta autem fuit divini patrocinii spes in abominandis hisce certaminibus ut (Johanne Sarisberiensi in Épistol. 169, aliisque testibus) certaturi noctem praecedentem ducerent insomnem in Templo ad tumulum alicujus sancti, ut eum in agone propitium experirentur.' That they were again and again disapproved by the Church and forbidden under heavy ecclesiastical penalties, hardly needs proof. The proofs occur passim.

privilege you to do me an injury; as soon as ever you do me an injury, you make yourself my equal, and as you are my equal, I challenge you; and in sense the duke is bound to answer him. This will give you some light to understand the quarrel betwixt a prince and his subjects. Though there be a vast distance between him and them, and they are to obey him according to their contract; yet he has no power to do them an injury. Then, they think themselves as much bound to vindicate their right, as they Io are to obey his lawful commands. Nor is there any other measure of justice left upon earth but arms.

XXXVI.

EPITAPH.

An epitaph must be made fit for the person for whom it is made. For a man to say all the excellent things that can be said upon one, and call that his epitaph, 'tis as if a painter should make the handsomest piece that he can possibly make, and say 'twas my picture. It holds in a funeral sermon.

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XXXVII.

EQUITY.

I. EQUITY in law is the same that the spirit is in religion, what every one pleases to make it. Sometimes they go according to conscience, sometimes according to law, sometimes according to the rule of the court.

1. 3. in sense the duke is bound] i. e. in reality; in point of fact. Selden uses this phrase elsewhere, see 'Preaching,' sec. 3 and 'Vows.'

2. Equity is a roguish thing. For law we have a measure, know what to trust to; equity is according to the conscience of him that is chancellor, and as that is larger or narrower, so is equity. 'Tis all one as if they should make the standard for the measure we call a foot, a chancellor's foot'. What an uncertain measure would this be. One chancellor has a long foot, another a short foot, a third an indifferent foot; 'tis the same thing in the chancellor's conscience.

3. That saying, Do as you would be done to, is often 10 misunderstood; for 'tis not thus meant, that I, a private man, should do to you, a private man, as I would have you to me, but do, as we have agreed to do one to another by public agreement. If the prisoner should ask the judge, whether he would be content to be hanged, were he in his case, he would answer, No. Then says the prisoner, Do

1 We call a foot, a chancellor's foot. Singer conjecturally] we call a chancellor's foot, MSS.

1. 1. Equity is a roguish thing. &c.] This has ceased to be true, as equity has come gradually to be administered under settled rules. On the conflict between law and equity in Selden's day, and on the general complaint about the aggressive and exorbitant authority of the Court of Chancery, see e. g. Chamberlain's letter to Carleton, November 14, 1616. 'On Tuesday, one Bertram, an aged gentleman, killed Sir John Tyndall, a master of the Chancery, with a pistol charged with three bullets, pretending he had wronged him in the report of a cause, to his utter undoing, as indeed he was not held for integerrimus. . . . Mine author, Ned Wymarke, cited Sir William Walter for saying that the fellow mistook his mark, and should have shot hailshot at the whole court, which indeed grows great, and engrosses all manner of cases, and breeds general complaint for a decree passed there this term, subscribed by all the king's learned counsel, whereby that court may receive and call in question what judgments soever pass at the common law, whereby the jurisdiction of that court is enlarged out of measure, and so suits may become as it were immortal. This success is come of my Lord Coke and some of the judges oppugning the Chancery so weakly and unreasonably that, instead of overthrowing that exorbitant authority, they have more established and confirmed it.' Court and Times of James I, vol. i. 439 (2 vols. 1848).

as you would be done to. Neither of them must do as private men, but the judge must do by him as they have publicly agreed; that is, both judge and prisoner have consented to a law, that if either of them steal they shall be hanged.

XXXVIII.

EVIL SPEAKING.

I. HE that speaks ill of another, commonly, before he is aware, makes himself such a one as he speaks against; for if he had civility or breeding, he would forbear such kind 10 of language.

2. A gallant man is above ill words. An example we have in the old lord of Salisbury, who was a great wise Stone had called some lord about court, fool, the

1. 13. Stone had called &c.] Doran (Court Fools, p. 196) says that this remark is all that we know of Stone. It seems to have been suggested by the unseemly passages of arms between Archbishop Laud and Archibald Armstrong, the Court Fool of the time (1637). Their enmities had been of long standing. The Fool had on several occasions offered public affronts to the Archbishop, with the result (according to Francis Osborn) that Laud 'managed a quarrel with Archie the King's fool, and by endeavouring to explode him the court rendered him at last so considerable . . as the fellow was not only able to continue the dispute for divers years, but received such encouragement from bystanders as he hath oft, in my hearing, belched in his face such miscarriages as he was really guilty of, and might, but for this foulmouthed Scot, have been forgotten; adding such other reproaches of his own as the dignity of his calling and greatness of his parts could not in reason or manners admit.' Osborn goes on to speak of the Archbishop as 'hoodwinked with passion' and as led by his too lowplaced anger into no less an absurdity than an endeavour to bring the fool into the Star Chamber, and as having at last through the mediation of the Queen got him discharged the Court. Rushworth says, further, that when news had come from Scotland that there had been tumults about the new service-book, introduced at Laud's suggestion, ‘Archibald, the King's fool, said to his Grace the Archbishop of Canterbury,