Montesquieu

When there were mul­ti­ple accu­sers,1 they had to concur so the mat­ter would be pur­sued by just one of them ; and if they could not agree, the man before whom the suit was brought would name one of them who would pur­sue the quar­rel.

When a gent­le­man chal­len­ged a com­mo­ner, he was to pre­sent him­self on foot, with his shield and staff ; and if he came on hor­se­back and with the wea­pons of a gent­le­man, they took away his horse and wea­pons ; he remai­ned in his shirt and was obli­ged to fight in that state against the com­mo­ner.2

Before the com­bat, jus­tice had three bans publi­shed.3 By one, the fami­lies of the par­ties were orde­red to with­draw ; by ano­ther, the peo­ple were cau­tio­ned to keep their peace ; by the third, it was for­bid­den to pro­vide assis­tance to one of the par­ties, under heavy penal­ties and even that of death, if through that assis­tance one of the com­ba­tants had been defea­ted.

Constabularies guar­ded the enclo­sure4 ; and in the case where one of the par­ties had men­tio­ned peace, they noted care­fully the pre­sent posi­tion of each of them at that moment, so they could be repla­ced in that iden­ti­cal situa­tion if peace was not made.5

When the gages were recei­ved for crime or for false judg­ment, peace could not be made without the lord’s consent ; and when one of the par­ties had been defea­ted, there could no lon­ger be a peace except with per­mis­sion of the count,6 which had some simi­la­rity to our let­ters of cle­mency.

But if it was a capi­tal crime, and the lord, cor­rup­ted by pre­sents, consen­ted to the peace, he paid a fine of sixty livres ; and his right to have the male­fac­tor puni­shed devol­ved to the count.7

There were many who were not in a posi­tion to offer nor to accept com­bat. They were per­mit­ted, when cause was shown, to choose a cham­pion ; and so that he would have the kee­nest inte­rest in defen­ding his party, his hand was cut off it he was defea­ted.8

When in the last cen­tury capi­tal laws were made against duels, it might have suf­fi­ced to deprive a war­rior of his war­rior sta­tus by the loss of his hand, since there is usually nothing sad­der for men than to sur­vive the loss of their iden­tity.

When in a capi­tal crime the com­bat was fought by cham­pions, the par­ties were pla­ced where they could not see the bat­tle ; each of them was bound by the chord that would serve for his exe­cu­tion if his cham­pion was defea­ted.9

The one who suc­cum­bed in the com­bat did not always lose the cause contes­ted : if, for exam­ple, they were figh­ting over a pre­li­mi­nary judg­ment, he lost only the pre­li­mi­nary judg­ment.10

Beaumanoir, ch. vi, p. 40–41

Beaumanoir, ch. lxiv, p. 328.

Ibid., p. 330.

Ibid.

Ibid.

The great vassals had particular rights.

Beaumanoir, ch. lxiv, p. 330, says : “He would lose his justice” ; these words in the writers of those times do not have a general signification, but one restricted to the matter in question (Défontaines, ch. xxi, art. 29).

This practice which we find in the capitularies subsisted in the time of Beaumanoir. See ch. lxi, p. 315.

Beaumanoir, ch. lxiv, p. 330.

Ibid., ch. lxi, p. 309.