It was probably as an impressive symbol of the penalties affixed by law to defeat in these combats that in some places the suggestive custom was in force of placing in the lists two biers in readiness for their ghastly occupants. In a duel which occurred at Augsburg in 1409, between two men named Marschalck and Hachsenacker, the former threw his adversary on the ground, and then asked him what he would have done had he been the victor. Hachsenacker grimly replied that he would have slain his foe, whereupon Marschalck despatched him, and placing himself in his bier caused himself to be carried to the church of St. Ulric, where he returned thanks for his victory.[548]
The most hideous exaggeration of the system, however, was found in the Frankish kingdoms of the East, which reserved a special atrocity for women—one of the numerous instances to be observed in mediæval law of the injustice applied habitually to the weaker sex. When a woman appeared, either as appellant or defendant, in the lists by her champion, if he was defeated she was promptly burnt, no matter what was the crime for which the duel occurred—and as many accusations could only be determined by the wager of battle, she had no choice but to undergo the chance of the most dreadful of deaths.[549]
It was not customary to order the combat to take place immediately, but to allow a certain interval for the parties to put their affairs in order and to undergo the necessary training. In Southern Germany this delay was for nobles from four to six weeks, and for others a fortnight, and during this period any assault by one on the other was a capital offence.[550] They were required to give security for their due appearance at the appointed time, various fines and punishments being inflicted on defaulters. By the law of both Northern and Southern Germany, when default was made by the defendant he was held guilty of the crime charged upon him: and if he was allowed the privilege of redeeming hand or life either as defendant or appellant, he was declared infamous, and deprived of the protection of the law. According to some MSS., indeed, all the possessions of a defaulter were forfeited, either to his heirs or to his feudal superior.[551] In a case occurring in the twelfth century in Hainault, between a seigneur and a man whom he claimed as a serf, the latter demanded the duel, which was allowed, but on the appointed day he failed to appear by nine o’clock. His adversary had waited for him since daybreak, and claimed the verdict which was awarded him by the council of Hainault. At this moment the missing man presented himself, but was adjudged to be too late, and was delivered to his claimant as a serf. According to the custom of Flanders, indeed, the combatant who failed to appear suffered banishment, with confiscation of all his possessions.[552] This extreme rigor, however, did not obtain universally. Among the Béarnese, for instance, the forfeiture for a default was only sixteen sous Morlaas.[553] By the English law, the defaulter was declared infamous, and was also liable to a fine to the king, for which there was apparently no fixed amount.[554] The Scandinavians punished him popularly by erecting a “nithstong”—pertica execrationis—a post inscribed with defamatory runes, and so flagrant was this insult considered, that finally it was prohibited by law under pain of exile.[555] Perhaps the most emphatic assertion, however, of the obligation to appear is the rule in the law of the Scottish Marches in 1249, that if the accused should die before the appointed day his body must be brought to the lists, “for no man can essoin himself by death.”[556]
The bail, of course, was liable for all legal penalties incurred by a defaulter, and occasionally, indeed, was made to share the fate of his principal, when the latter appeared and was defeated. In the law of Southern Germany, according to one text, the bail under these circumstances was liable to the loss of a hand, which, however, he could redeem, while another version makes him suffer the penalty incurred by his principal.[557] This latter rule is announced in a miracle play of the fourteenth century, where a stranger knight at the court of Paris, compelled to fight in defence of the honor of the king’s daughter, is unable to find security. The queen and princess offer themselves as hostages and are accepted, but the king warns them—
Dame, par Dieu le roy celestre!
Bien vous recevray pour hostage;
Mais de tant vous fas-je bien sage,
Se le dessus en peut avoir
Ardré, je vous feray ardoir.
Et mettre en cendre.[558]