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it is not true that he hath done the facte wherwth I have chardged
him &c. & this is called expresse deniall. ffor there is also an
other kinde of deniall more coverte, as yf the vanquished
doothe saye I yelde, or I am victored, as we haue alredie made
mention of once in a Combat performed in Padoua, because that
speache wthout more wordes shall suffize. Or yf he saye
holde thy hande I am this prisonner, or I praye the kill me not
because reason is on this side, geve my my liffe, I am thine to be vsed
at thy pleasr, or I require mercie at thy hande, for I yelde vnto
thy will as a deade man. The victored vsinge anye of thease
submissions maye be saved by the victorious, or the Iudge hearing
the submission may by his aucthoritie depart the fighters, geving
the honnor & right to him that is moste worthie therof. Mr
Baldo affirmeth that yf a man shall saye I yelde vnto thy
hands, or to the Iudge, or saye I have vniustlie offended the, &
therfore refuze the combatt, that then the victorious ought vse
mercie, for it is intended he yeldeth as a man. But yf he saide
I yelde vnto thee as a deade man, then maye the victorious slea
him as is beforesaide. Also yf he saith holde thy hande I am
deade those wordes shalbe imputed a Couert deniall. Or yf
wth humilitie he craveth mercie or asketh pardon, the same shalbe
(yf the victorious will so allowe) an open deniall. But yf the
victorious doe require plaine & expresse satisfaction, then
must the same be so pronounced. ffor manie times it is done by waye
of excuse, wch is not the true & lawfull deniall, but is rather a
composition or agrement, wch is admittable only wher the offence or
iniurious speache is such as may by the Iudge be turned to a const:
ruction of lesse offence. As for example yf one man reporteth
an other to be a traitor, & he hearinge it, suspectinge the wordes to
be spoken of him, answereth thowe doest not saye true. ffor I
am no traitor, then yf the speaker replieth sayenge I spake not
of thee but of a thirde man, this shalbe an excuse, but no deniall
ffor yf he had said at the first thow art a traitor, & affirmed the
same saienge the contrarie after, sholde be a manifest deniall
Or yf an officer makinge rome emonge the people at a triumphe
doth strike a gent, who for so doinge doth challenge him to fighte
yf the offender dooth answere I had no intent to hurte the, but
vnawares I strake yowe, that shall not be called a deniall, or
vnsaienge of the deede but an excuse of the faulte, albeit he
addeth therunto. I did it against my will, or I did yowe wronge,
yet all these speaches shall not be intended anye deniall vnles