Of a challenger that in combat loseth his sworde whether the defender ought to be Uictorious
Ca. 33.
A gent beinge Challenged to fight for liffe, after longe & valiaunt fightinge in thende loseth his sworde. Notwthstandinge by retiringe wardinge & defendinge wth armes and handes saueth him selfe from thennemie, till the laste instaunt of the daye wthout beinge slaine, yeldinge or takinge. The question is whether this gent havinge evell in this sorte loste his sworde ought to be reputed as vanquished or to have the worse in losinge the princypall instrumente of battle. The lawe Ciuile affirmeth that the losse of the sworde & weopon is the greatest dishonnor in Combatt that can happen to anye gent, for that wthout his faulte the same cannot be taken awaye. The lawe imperiall & discipline of warre commaundeth that whosoever loseth his weopon, beinge founde by anie soldier or other companion it shall not be restored to the looser. But yf anie other thinge loste in battle be founde of right it ought in a due time to be restored. Notwthstanding to giue right iudgement in this case it is determined, that this gent was not overcome nor vanquished though by his ennemie disarmed & forced to flee about the feilde. ffor in battle for liffe wherin either death or deniall is required, neither the one nor the other beinge donne no victory is gotten, notwthstanding the sworde loste semeth to bringe somme honnor to him that tooke the same. Yet all thinge well considered the defendr hauinge lost his sworde deserueth praise for that disarmed of his sworde he coulde defende him selfe wthout losse of liffe libertie or deniall, and for thease consyderacions ought to be acquited of this quarrell, marie in combat for triall of virtue he deserueth most honnor yt gaineth the ennemies sworde. But in this case he is most worthie commendacions that disarmed defendeth him selfe, then he that wth weopon coulde not offende his disarmed ennemie. wherfore I remitt the Iudgement to expert soldiers, yf better reason shall move them thervnto. ~ . ~ . ~ . ~ . ~ . ~ .
