University of Virginia Library

28.25. 25. Of the Bounds prescribed to the Custom of judicial Combats.

When pledges of battle had been received upon a civil affair of small importance, the lord obliged the parties to withdraw them.

If a fact was notorious; for instance, if a man had been assassinated in the open marketplace, then there was neither a trial by witnesses, nor by combat; the judge gave his decision from the notoriety of the fact. [146]

When the court of a lord had often determined after the same manner, and the usage was thus known, [147] the lord refused to grant the parties the privilege of duelling, to the end that the usages might not be altered by the different success of the combats.

They were not allowed to insist upon duelling but for themselves, for some one belonging to their family, or for their liege lord. [148]

When the accused had been acquitted, another relative could not insist on fighting him; otherwise disputes would never be terminated. [149]

If a person appeared again in public whose relatives, upon a supposition of his being murdered, wanted to revenge his death, there was then no room for a combat; the same may be said if by a notorious absence the fact was proved to be impossible. [150]

If a man who had been mortally wounded had exculpated before his death the person accused and named another, they did not proceed to a duel; but if he had mentioned nobody his declaration was looked upon as a forgiveness on his death-bed; the prosecution was continued, and even among gentlemen they could make war against each other. [151]

When there was a conflict, and one of the relatives had given or received pledges of battle, the right of contest ceased; for then it was thought that the parties wanted to pursue the ordinary course of justice; therefore he that would have continued the contest would have been sentenced to make good all the losses.

Thus the practice of judiciary combat had this advantage, that it was apt to change a general into an individual quarrel, to restore the courts of judicature to their authority, and to bring back into the civil state those who were no longer governed but by the law of nations.

As there are an infinite number of wise things that are managed in a very foolish manner; so there are many foolish things that are very wisely conducted.

When a man who was challenged with a crime visibly showed that it had been committed by the challenger himself, there could be then no pledges of battle; for there is no criminal but would prefer a duel of uncertain event to a certain punishment. [152]

There were no duels in affairs decided by arbiters, [153] nor by ecclesiastical courts, nor in cases relating to women's dowries.

"A woman," says Beaumanoir, "cannot fight." if a woman challenged a person without naming her champion, the pledges of battle were not accepted. It was also requisite that a woman should be authorised by her baron, that is, by her husband, to challenge; but she might be challenged without this authority. [154]

If either the challenger or the person challenged were under fifteen years of age, there could be no combat. [155] They might order it, indeed, in disputes relating to orphans when their guardians or trustees were willing to run the risk of this procedure.

The cases in which a bondman was allowed to fight are, I think, as follows. He was allowed to fight another bondman; to fight a freedman, or even a gentleman, in case he were challenged; but if he himself challenged, the other might refuse to fight; and even the bondman's lord had a right to take him out of the court. [156] The bondman might by his lord's charter or by usage fight with any freeman; [157] and the church claimed this right for her bondmen [158] as a mark of respect due to her by the laity. [159]

Footnotes