Superstition and Force: Essays on the Wager of Law, the Wager of Battle, the Ordeal, TortureLea, Henry Charles
History
Superstition and Force: Essays on the Wager of Law, the Wager of Battle, the Ordeal, Torture
Lea, Henry Charles
Ordeal; Torture; Wager of battle; Wager of law
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
Public-domain text, read in full here on John Shaqi.
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