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According to the different circumstances of every country and age； love inclines more to one of those three things than to the other two。 Now I maintain that the prevailing spirit at the time of our judicial combats must have been that of gallantry。
I find in the law of the Lombards；＇133＇ that if one of the two champions was found to have any magic herbs about him； the judge ordered them to be taken from him； and obliged him to swear he had no more。 This law could be founded only on the vulgar opinion； it was fear； the alleged inventor of much that made them imagine this kind of prestige。 As in single combats the champions were armed at all points； and as with heavy arms； both of the offensive and defensive kind； those of a particular temper and strength gave immense advantages； the notion of some champions having enchanted arms must certainly have turned the brains of a great many people。
Hence arose the marvellous system of chivalry。 The minds of all sorts of people quickly imbibed these extravagant ideas； In romances are found knights…errant； necromancers； and fairies； winged or intelligent horses； invisible or invulnerable men； magicians who concerned themselves in the birth and education of great personages； enchanted and disenchanted palaces； a new world in the midst of the old one； the usual course of nature being left only to the lower class of mankind。 Knights…errant ever in armour； in a part of the world abounding in castles； forts； and robbers； placed all their glory in punishing injustice； and in protecting weakness。 Hence our romances are full of gallantry founded on the idea of love joined to that of strength and protection。
Such was the origin of gallantry； when they formed the notion of an extraordinary race of men who at the sight of a virtuous and beautiful lady in distress were inclined to expose themselves to all hazards for her sake； and to endeavour to please her in the common actions of life。
Our romances of chivalry flattered this desire of pleasing； and communicated to a part of Europe that spirit of gallantry which we may venture to affirm was very little known to the ancients。
The prodigious luxury of that immense city of Rome encouraged sensuous pleasures。 The tranquillity of the plains of Greece gave rise to the description of the sentiments of love。＇134＇ The idea of knights…errant； protectors of the virtue and beauty of the fair sex； led to that of gallantry。
This spirit was continued by the custom of tournaments； which； uniting the rights of valour and love； added still a considerable importance to gallantry。
23。 Of the Code of Laws on judicial Combats。 Some perhaps will have a curiosity to see this abominable custom of judiciary combat reduced to principles and to find the groundwork of such an extraordinary code of laws。 Men； though reasonable in the main； reduce their very prejudices to rule。 Nothing was more contrary to good sense； than those combats； and yet when once this point was laid down； a kind of prudential management was used in carrying it into execution。
In order to be thoroughly acquainted with the jurisprudence of those times； it is necessary to read with attention the regulations of St。 Louis； who made such great changes in the judiciary order。 Défontaines was contemporary with that prince； Beaumanoir wrote after him；＇135＇ and the rest lived since his time。 We must； therefore； look for the ancient practice in the amendments that have been made of it。
24。 Rules established in the judicial Combat。 When there happened to be several accusers； they were obliged to agree among themselves that the action might be carried on by a single prosecutor； and； if they could not agree； the person before whom the action was brought； appointed one of them to prosecute the quarrel。＇136＇
When a gentleman challenged a villain； he was obliged to present himself on foot with buckler and baston； but if he came on horseback and armed like a gentleman； they took。 his horse and his arms from him and； stripping him to his shirt； they compelled him to fight in that condition with the villain。＇137＇
Before the combat the magistrates ordered three bans to be published。 By the first the relatives of the parties were commanded to retire； by the second the people were warned to be silent； and the third prohibited the giving of any assistance to either of the parties； under severe penalties； nay； even on pain of death if by this assistance either of the combatants should happen to be vanquished。＇138＇
The officers belonging to the civil magistrate＇139＇ guarded the list or enclosure where the battle was fought； and in case either of the parties declared himself desirous of peace； they took particular notice of the actual state in which they mutually stood at that very moment； to the end that they might be restored to the same situation in case they did not come to an understanding。＇140＇
When the pledges were received either for a crime or for false judgment； the parties could not make up the matter without the consent of the lord； and when one of the parties was overcome； there could be no accommodation without the permission of the count； which had some analogy to our letters of grace。＇141＇
But if it happened to be a capital crime； and the lord； corrupted by presents； consented to an accommodation； he was obliged to pay a fine of sixty livres； and the right he had of punishing the malefactor devolved upon the count。＇142＇
There were a great many people incapable either of offering； or of accepting battle。 But liberty was given them； on cause being shown； to choose a champion； and that he might have a stronger interest in defending the party in whose behalf he appeared； his hand was cut off if he lost the battle。＇143＇
When capital laws were made in the last century against duels； perhaps it would have been sufficient to have deprived a warrior of his military capacity by the loss of his hand； nothing in general being a greater mortification to mankind than to survive the loss of their character。
When； in capital cases； the duel was fought by champions； the parties were placed where they could not behold the battle； each was bound with the cord that was to be used 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 a