the spirit of laws-第147章
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hosoever goes attended with servants to beat a man unawares； in order to load him with shame and to render him ridiculous； should pay half the composition which he would owe if he had killed him；＇129＇ and if through the same motive he tied or bound him； he would pay three…quarters of the same composition。
Let us then conclude that our forefathers were extremely sensible of affronts； but that affronts of a particular kind； such as being struck with a certain instrument on a certain part of the body； and in a certain manner； were as yet unknown to them。 All this was included in the affront of being beaten； and in this case the amount of violence determined the magnitude of the outrage。
21。 A new Reflection upon the Point of Honour among the Germans。 〃It was a great infamy；〃 says Tacitus；＇130＇ 〃among the Germans for a person to leave his buckler behind him in battle； for which reason many after a misfortune of this kind have destroyed themselves。〃 Thus the ancient Salic law＇131＇ allows a composition of fifteen sous to any person that had been injuriously reproached with having left his buckler behind him。
When Charlemagne amended the Salic law；＇132＇ he allowed in this case no more than three sous in composition。 As this prince cannot be suspected of having had a design to enervate the military discipline； it is manifest that such an alteration was due to a change of weapons； and that from this change of weapons a great number of usages derive their origin。
22。 Of the Manners in relation to judicial Combats。 Our connections with the fair sex are founded on the pleasure of enjoyment； on the happiness of loving and being loved； and likewise on the ambition of pleasing the ladies； because they are the best judges of some of those things which constitute personal merit。 This general desire of pleasing produces gallantry； which is not love itself； but the delicate； the volatile； the perpetual simulation of love。
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 alw
