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d at his execution in case his champion was overcome。＇144＇ The person overcome in battle did not always lose the point contested； if； for instance； they fought on an imparlance； he lost only the imparlance。＇145＇
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＇
26。 On the judiciary Combat between one of the Parties and one of the Witnesses。 Beaumanoir informs us＇160＇ that a person who saw a witness going to swear against him might elude the other by telling the judges that his adversary produced a false and slandering witness； and if the witness was willing to maintain the quarrel； he gave pledges of battle。 The inquiry was no longer the question； for if the witness was overcome； it was decided that the adversary had produced a false witness； and he lost his cause。
It was necessary that the second witness should not be heard； for if he had made his attestation； the affair would have been decided by the deposition of two witnesses。 But by staying the second； the deposition of the first witness became void。
The second witness being thus rejected； the party was not allowed to produce any others； but he lost his cause； in case； however； there had been no pledges of battle； he might produce other witnesses。
Beaumanoir observes＇161＇ that the witness might say to the party he appeared for； before he made his deposition： 〃I do not care to fight for your quarrel； nor to enter into any debate； but if you are willing to stand by me； I am ready to tell the truth。〃 The party was then obliged to fight for the witness； and if he happened to be overcome； he did not lose his cause；＇162＇ but the witness was rejected。
This； I believe； was a modification of the ancient custom； and what makes me think so is that we find this usage of challenging the witnesses established in the laws of the Bavarians＇163＇ and Burgundians＇164＇ without any restriction。
I have already made mention of the constitution of Gundebald； against which Agobard＇165＇ and St。 Avitus＇166＇ made such loud complaints。 〃When the accused；〃 says this prince； 〃produces witnesses to swear that he has not committed the crime； the accuser may challenge one of the witnesses to a combat； for it is very just that the person who has offered to swear； and has declared that he was certain of the truth； should make no difficulty of maintaining it by combat。〃 Thus the witnesses were deprived by this king of every kind of subterfuge to avoid the judiciary combat。
27。 Of the judicial Combat between one of the Parties and one of the Lords' Peers。 Appeal of false Judgment。 As the nature of judicial combats was to terminate the affair for ever； and was incompatible with a new judgment and new prosecutions；＇167＇ an appeal； such as is established by the Roman and Canon laws； that is； to a superior court in order to rejudge the proceedings of an inferior； was a thing unknown in France。
This is a form of proceeding to which a warlike nation； governed solely by the point of honour； was quite a stranger； and agreeably to this very spirit； the same methods were used against the judges as were allowed against the parties。＇168＇
An appeal among the people of this nation was a challenge to fight with arms； a challenge to be decided by blood； and not that invitation to a paper quarrel； the knowledge of which was reserved for succeeding ages。
Thus St。 Louis； in his Institutions；＇169＇ says that an appeal includes both felony and iniquity。 Thus Beaumanoir tells us that if a vassal wanted to make his complaint of an outra