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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 outrage committed against him by his lord；＇170＇ he was first obliged to announce that he quitted his fief； after which he appealed to his lord paramount； and offered pledges of battle； In like manner the lord renounced the homage of his vassal； if he challenged him before the count。
For a vassal to challenge his lord of false judgment was as much as to say to him that his sentence was unjust and malicious； now to utter such words against his lord was in some measure committing the crime of felony。
Hence； instead of bringing a challenge of false judgment against the lord who appointed and directed the court； they challenged the peers of whom the court itself was formed； by which means they avoided the crime of felony； for they insulted only their peers； with whom they could always account for the affront。
It was a very dangerous thing to challenge the peers of false judgment。＇171＇ If the party waited till judgment was pronounced； he was obliged to fight them all when they offered to make good their judgment。＇172＇ If the appeal was made before all the judges had given their opinion； he was obliged to fight all who had agreed in their judgment。 To avoid this danger； it was usual to petition the lord to direct that each peer should give his opinion aloud；＇173＇ and when the first had pronounced； and the second was going to do the same； the party told him that he was a liar； a knave and a slanderer； and then he had to fight only with that peer。
Défontaines＇174＇ would have it that； before a challenge was made of false judgment； it was customary to let three judges pronounce； and he does not say that it was necessary to fight them all three； much less that there was any obligation to fight all those who had declared themselves of the same opinion。 These differences arose from this； that in those times there were few usages exactly in all parts the same； Beaumanoir gives an account of what passed in the county of Clermont； and Défontaines of what was practised in Vermandois。
When one of the peers or a vassal had declared that he would maintain the judgment； the judge ordered pledges of battle to be given； and likewise took security of the challenger that he would maintain his case。＇175＇ But the peer who was challenged gave no security； because he was the lord's vasal； and was obliged to defend the challenge； or to pay the lord a fine of sixty livres。
If he who challenged did not prove that the judgment was bad；＇176＇ he paid the lord a fine of sixty livres； the same fine to the peer whom he had challenged； and as much to every one of those who had openly consented to the judgment。＇177＇
When a person； strongly suspected of a capital crime； had been taken and condemned； he could make no appeal of false judgment：＇178＇ for he would always appeal either to prolong his life； or to get an absolute discharge。
If a person said that the judgment was false and bad and did not offer to prove it so； that is； to fight； he was condemned to a fine of ten sous if a gentleman； and to five sous if a bondman； for the injurious expressions he had uttered。＇179＇
The judges or peers who were overcome forfeited neither life nor limbs；＇180＇ but the person who challenged them was punished with death； if it happened to be a capital crime。＇181＇
This manner of challenging the vassals with false judgment was to avoid challenging the lord himself。 But if the lord had no peers；＇182＇ or had not a sufficient number； he might at his own expense borrow peers of his lord paramount；＇183＇ but these peers were not obliged to pronounce judgment if they did not like it； they might declare that they were come only to give their opinion： in that particular case； the lord himself judged and pronounced sentence as judge；＇184＇ and if an appeal of false judgment was made against him； it was his business to answer to the challenge。
If the lord happened to be so very poor as not to be able to hire peers of his paramount；＇185＇ or if he neglected to ask for them； or the paramount refused to give them； then； as the lord could not judge by himself； and as nobody was obliged to plead before a tribunal where judgment could not be given； the affair was brought before the lord paramount。
This； I believe； was one of the principal causes of the separation between the jurisdiction and the fief； whence arose the maxim of the French lawyers； 〃The fief is one thing； and the jurisdiction is another。〃 For as there were a vast number of peers who had no subordinate vassals under them； they were incapable of holding their court； all affairs were then brought before their lord paramount； and they lost the privilege of pronouncing judgment； because they had neither power nor will to claim it。
All the judges who had been at the judgment were obliged to be present when it was pronounced； that they might follow one another； and say aye to the person who； wanting to make an appeal of false judgment； asked them whether they followed；＇186＇ for Défontaines says＇187＇ that it is an affair of courtesy and loyalty； and there is no such thing as evasion or delay。 Hence； I imagine