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Twoe Armies one beinge ennemie to the other
were encamped in the plaine feilde. It happened yt
a soldier of the one campe challinged to fight for liffe wth a
soldier of the other campe. And havinge obteined licence of the
generalls, they determined to proceede in the combatt wth thease
condicions, that wchsoeuer of them were vitored shold be the pry:
soner of his capteine that gained the victorie. The combat be:
inge ended & one of the fighters yelded, the Capteine whose soldier
had the victorie, accordinge to composition claimed the prisonner
but the victorious soldier refuzed to deliuer him, sayenge that sith
the victorie was wonne wth his owne bloode, the prisonner
ought be his. ffor notwthstandinge he were yelded to his cap:
teine yet cannot the same remove hys intereste. the quest:
ion therforee is, whether the prisonner doth abteigne to the cap:
teine or the souldier? Baldo saith, that yf a Soldier taketh a
Prisonner in the feilde notwthstandinge the prisonner did
yelde to his takers Capteine, yet ought he be the soldiers pry:
sonner, the reason is, that by his virtue & not the capteines,
the prisonner was taken. ffor in such cases we ought not have
respecte to the wordes of the prisonner, but looke by whose force
he is vanquished. But yf after yeldinge he be set at libertie
& will for reverence confesse him self to be the prisonner of
the Capteine, then shall he be reputed, because the soldier in
settinge his prisonner at libertie, semeth content he sholde yelde
vnto his Capteine. But yf contrariewise he holdeth the pry:
sonner, kepinge him as his owne, and refuzeth to accept him as
yelded to his Capteine. In a generall fight it is otherwise, for yf
a prisonner be taken in battle or skirmish, he shalbe accompted a
prisonner to the Capteine generall, yf to him he did yelde & not
to his taker. Notwthstandinge I submitt mine opinion to the
customes militarie wherin diuersitie is made whether the
soldier victorious be a seruaunt or a soldier to his capteine vndr
whom he serueth. wherfore Baldo of Perugia made distincti:
on where the taker releaseth a prisonner, & where he is not released,
ffor in the first case he is the prisonner of the Capteine, & next the
Prisonner of his Taker. wch is the Trwe Iudgement
of this Question.