Chapter II.

The Tribunal-Lord— The Count— The Schfippen— The Mes- sengers — The Public Court — The Secret Tribunal — Extent of its Jurisdiction — Places of holding the Courts — ^Time of holding them — Proceedings in them — Process where the criminal was caught in the fact — Inquisitorial Process.
Having traced the origin of the Fehm-gerichte and their various appellations, as far as the existing docu- ments and other evidences admit, we are now to describe the constitution and procedure of these celebrated tribunals, and to ascertain who were the persons that composed them ; whence their authority was derived ; and over what classes of persons their jurisdiction extended.
Even in the periods of greatest anarchy in Germany, the emperor was regarded as the fountain of all judicial power and authority, more particularly where it extended to the right of inflicting capital punish- ment. The Fehm-pgerichte, therefore, reganied the emperor as their head, from whom they derived all the power which they possessed, and acknowledged his right to control and modify their constitution and decisions. These rights of the emperors we shall, in the sequel, describe at length.
Between the emperor and the Westphalian tri- bunal-lords {Stuhlherren)^ as they were styled, that is, lay and ecclesiastical territorial lords, there was no intermediate authority until the fourteenth century, when the Archbishop of Cologne was made the im-
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347
perial lieutenant in Westphalia. Ench tribunal -lord ha(lhiapeculiardistrict,within which he had the power of erectiiifj Iribunals, and beyonil which his autho- rity did not extend. He either presided In person in his court, or he appointed a count (Freigraf) to sup- ply his place, The rights of a stuhiherr* had some resemblaDce to those of the owner of an advowson in this country. He had merely the power of nomi- nating' either himself or anotherpersou as count; the right to inflict capital punishment was to be conferred by the emperor or his deputy. To this end, when a Iribonal-lord presented a count for investiture, he was obliged to certify on oath that the person so presented was truly and honestly, both by father and mother, born on Westphalian soil ; that lie stood in no ill repute i that he knew of no open crime he had committed ; and that lie believed him to be perfectly well qualified to preside over the county.
The count, on being appointed, was toswear that he would judf;e truly and justly, according to the law and the r(>gulations of the emperor Charles and the dosed tribunal ; that he would be obedient to the em- peror or kin^r, and his lieutenant ; and that be would repair, at least once iu eacii year, to the general chapter which was to be held on Ihe Westphalian land, and give an account of his conduct, &c.
The income of the free-coimt arose from fees and a share in fineg; he had also a fixed. allowance iu money or in kind from the stuhlherr. Each free- schuppe who was admitted made him a present, to~ repair, as the laws express it, ha couiitly hat. If. the person admitted was a knight, this fee was a mark of gold ; if not, a mark of silver. Every one of the initiated who cleared himself by oath from'
■d
4
348
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any charge paid the count a cross-penny. He had a, share of all the fines imposed in his court, and a fee on ciLstioiis, &c.
There was in general but one count to each tribunal ; but instances occur of there buing^ b3 many as seven or eight. The count presided in the court, and the citations of the acctised proceeded
Next to the count were the assessors or (^Schoppeii)*. These formed the main body and strength of the society. They were nominated by the count with the approbation of the tribunal-lord. Two persons, who were already in the society, were obliged to vouch on oalh fur the fitness of the can- didate to be admitted. It was necessary that he slnmld be a German by birth ; born in wedlock of free parents ; of ihe Christian religion ; neither ex- communicate nor outlawed ; not involved in any Fehm-gericht process; a member of no spiritual
These schiippen were divided into two classes, the knightly, and the simple, respectable assessors; for, as the ma»im tliat every man should lie judged by his peers prevailed universally during the middle ages, it was necessary to conform to it also in the Fehm-tribunals.
Previous to their admission to a knowledge of the secrets of the society, the schoppen were named Ignorant; when they had been initiated they were called Knowing (IVissende) or Fehmenotes, It was only these last who were admitted lo the secret-
* This word, which cannot be adeqiiHlely translated, is the low-Latin Scakim, the French Eckcvias. Vie ahall tatu- the lilJeny of uainx it thtoughouL The suhoppea were called frei court frtt-alakl, on account uf the juribdirfioa of the tribunal* being conGnad to freemen.
5SCRET TRIBUNALS OF WESTPHALIA. 349
tribunal. The inilialion of u schijppe was attended with a good deal of ceremony. He appeared bare- headed before the assembled tribunal, atid was there questioned respecting his qunlitications. Then, kneeling down, with the thumb and forefinger of his right. hand on a naked sword and a halter, he pro- nuUQced the following oath after tlie count : —
" I promise, on the holj marriage, that I will, from henceforth, aid, keep, and conceal the holy Fehnis, from wile and child, from father and mother, from sister and brother, from fire and wind, from all that the sun shines on and the rain covers, from all that is between sky and ground, especially from the man who knows the law, and will bring before this free tribunal, under which I sit, all that belongs to ihe secret jurisdiction of the emperor, whether 1 know it to be true myselt^ or have heard it from trustworthy people, whatever requires correction or punishment, whatever is Fehm-free (i. e. a crime committed in the county), that it may be judged, or, with the consent of the accuser, be put off in grace ; and will not cease so to do, for love or for fear, for gold or for silver, or for precious stones ; and will strengthen this tribunal and jurisdiction with all my five senses and power; and that I do not take on me this office for any other cause than for the sake of right and justice ; moreover, that I will ever further and honour this free tribunal more than any other tree tribunals; and what I thus promise will I stedf'aslly and firmly keep, so help me God and his Holy
He was further obliged to swear that he would ever, to the best of hia ability, enlarge Ihe holy em- pire ; and that lie would undertake nothing with uti' righteous hand against Ihe land and people of the Btuhiherr.
The count then inquired of the officers of the
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court (the Frohnboint) ir the candidate had g«ae - through all the formaUties requisite to reception, and w)ieD that officer had answered in the affirmative, the couut revealed (o the aspirant the secrels of the tri- bunal, and communicated to him tlie secret sij^n by which the initialed knew one another. What this s)p;n was i.s utterly unknown : some say that when they met at table they used to turn the point of their knife to themselves, and the hafl away from them. Others take the letters S S GG, which were Ibund in an old MS. at Herford, to have been the sign, and interpret them Stock Sfein, Gras Grein. These are, however, the most arbitrary conjectures, witliout a shadow of proof. The count then was bound to enter the name of the new member in his reg^ister, and henceforth he was one of the powerful body of the initiated.
Princes and nubles were anxious to have their chancellors and minister^ corporate towns to have their magistrates, eiuong' the initiated. Many princes soui^lit to be themselves members of this formidable association, and we are assured that in the fouiteeath and fifteenth centuries {which are the only ones of which we have any particular accounts) the number of the initiated exceeded 100,000.
Tile duty of the initiated was to' go through the country to serve citations and to trace out and de- nounce evil-doers; or, if they caught them in the fuct, to execute instant justice upon them. They were also the count's assessors when the Iribuual sat. For that purpose seven at least were required to be present, all belonging to the county in which the court was held; those belonging to other counties might attend, but they could not act as assessors ; they only formed a part of tiie bystanders of the court. Of these there were frequently some hundreds present.
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All the initiated of every degree might go on foot and on horseback through the country, for daring was the man who would presume to injure them, as certain death was his inevitable lot. A dreadful punishment also awaited any one of them who should forget his vow and reveal the secrets of the society ; he w4s to be seized, a cloth bound over his eyes, his hands tied behind his back, a halter put about his ' neck ; he was to be thrown upon his belly, his tongue pulled out l)ehind by the nape of his neck, and he was then to be hung seven feet higher than any other felon. It is doubtful^ however, if there ever was a necessity for inflicting this punishment, for ^neas Sylvius, who wrote at the time when the society had degenerated, assures us that no niember had ever been induced, by any motives whatever, to betray its secrets ; and he describes the initiated as grave men and lovers of right and justice. Similar language is employed concerning them by other writers of the time.
Besides the count and the assessors, there were required, for the due holding a Fehm-court, the officers named Frohnboten^^ or Serjeants, or messengers, and a clerk to enter the decisions in what was called the blood-book (Liber sanguinis). These were, of course, initiated, or they could not be present. It was re- quired that the messengers should be freemen be- longing to the county, and have all the qualiBcations of the simple schoppen. Their duty was to attend on the court when sitting, and to take care that the ignorant, against whom there was any charge, were duly citedf.
* Frohnhote is inter(»reted a Holy Meatenger, or a Servant of Qod,
t When a person was admitted into the society he paid, be- sides the fee to the count already mentioned, to each schoppe
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352 SEOKET SOCIBTIES.
The count was to hold two kinds of courts, the one public, named the Open or Public Court (Offmbare Ding), to which ewry freeman had axxess ; the other private, called the Secret Tribunal {Hdmliche Achf), at which no one who was not initiated could venture to appear.
Ttie former court ivas held at stated periods, and at least three times in each year, it was announced fourteen days previously by the messeiig'ers (Frokn- bolcn), and every householder in the county, whether initiated or not, free or servile, was bound under a, penalty of four heavy shillings, to appear atitand de- clare on oath what crimes he knew to have been committed in the county.
When ihe couut held the Secret Court, the clergy, who had received the lonsure and ordiuaiion, women and children, Jews and Meatheiis *, and, as it would appear, the higher nobility, were exempted from its jurisdiction. The clergy were exenipled, probably, from prudential motives, as it was not deemed safe to irritate the members of so powerful a body, by encroaching on their privileges; they might, how- ever, voluntarily subject themselves to the Fehm- geriehte if they were desirous of partaking of the advantages of initiation. Women and children were exempt on account of their sex and age, and the period of infancy was extended, in the citations, to fourteen, eighteen, and sometimes twenty years of age. Jews, Heathens, and such like, were exempted on account of their un worthiness. The higher no- bility were exempted (if such was realty the case) in compliance with the maxim of German law that
who was assistiDK there, and to each frohnbate, four liviti Tuuingis.
• Ths natiYes of Prawift were still heathens at that time.
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each person should be jud^d by his i)eGrs, as it was scarcely possible that in any county there conid be found a count and seven assessors of equal rank with accused persons of that class.
In their original constitution the Fehm-gerii;hle, agreeably to the derivation of the name from Fern, condemnation, were purely criminal courts, and had no jurisdiction in civil matters. They took cogni- zance of all offences against the Christian faith, the holy gospel, the holy ten commandments, the public peace, and private honour — a category, however, which might easily be made to include almost every transgression and crime that could be committed. We according^ly find in the laws of the Fehm- sferichte, sacrilege, robbery, rape, murder, apostacy^ treason, perjury, coining, &c., &c., enuraeraled; and the courts, by an astute interpretation of the law, eventually managed to make matters which had not even the most remote appearance of criminality FeAm- bar, or within their jurisdiction.
But all exceptions were disregarded in casesof con- tumacy .orofaperson being taken in the actual commis- sion of an olTence. When a person, after being duly cited, even in a civil case, did not appear to answer the charge against him, he was outlawed, and his oHence htcame fehtnbar ,- every judge was then autho- rized to seize the accused, whether he belonged to his county or not; the whole force of the initiated was now directed against him, and escape tvas hardly pos- sible. Here it was that the superior power of the Fehni-gerichte exhibited itself Other courts could outlaw as well as ihey, but no other had the same means of putting its sentences into execution. The only remedy which remained for the accused was to offer to appear and defend his cause, or lo sue to the emjieror for protection. In cases where a person was caught _^-ag'ran(i de/ic(o, the Westphaliau
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tribunals were competent to proceed to iuslant piiniahment.
Those who derive their knowledge of the Fehm- gerichte from plojs and romances are apt to imagine that they were always held in subterranean chambers, or in the deepest recessea of impenetrable forests, while night, by pouring her deepest gloom over thetn, added to their awfhlness and solemnity. Here, as elsewhere, we must, however reluctantly, lend our aid to dispel the illusions of fiction. They were not held either in woods or in vaults, and rarely even under a roof. There is only one recorded instance of a Fehm-gericht being held under ground, viz., at Heinbei^, under the house of John Menkin. At Paderbprn indeed it was held in the lown-house; there was also one held in the castle of Wulften. But the situation most frequently selected for holding & court was some place under the blue canopy of heaven, for the free German still retained the predi- lecliuu of his ancestors for open space and expansion. Thus at Nordkirchen and Sildkirchen Qiorlh, and south church) the court was held in the churchyard ; at Dortmund, in the market-place close by the town-house. But the favourite place for holding these courts was the neighbourhood of trees, as in the olden time: and we read of the tribuual at Arens- herg in the orchard^ of another under the hawthorn; of a third under the pear-tree ; of a fourth under the linden, and so on. We also hiid the courts denomi- nated simply from the trees by which they were held, such as the trlbunul at the elder, that at the broad oak, &c.
The idea of their being held at night is also utterly devoid of proof, no mention of any such practice being found in any of the remaining documeuis. It is much nore analogous to Germanic usage In infer that, 8 l/ie Public Court, and the German courls in ge-
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iipral, were held in the morning, soon after the break of'daj', such was also the rule, with the Secret Court.
When an affair was brought before a Fehm-court, ihe first point to be determined was whether it was a matter of Fehm-jurisdiction. Should uich prove to be the case, the accused was summoned to appear and answer the chari^e before the Public Court. All sorts of persons, Jews and Heathens included, might be summoned before this court, at which the unin- itiated scbOppen also gave atlendance, and which was as public as any court in Germany. If the ac- cused did not appear, or appeared and could not clear himself, the ailiiir was transferred to the Secret Court. Civil matters also, which on account of a denial of satisfaction were brought before the Fehm- court, were, in like manner, iu cases of extreme con- tumacy, transferred (hither.
The Fehm- tribunals had three dilTerent modes of procedure, namely, that in case of the criminal being taken in the fact, the inquisitorial, and the purely accusatorial.
Two things were requisite in the first case ; the criminal must be taken in the fact, and there must be three schuppen, at least, present to punish him. Wiih respect to Ihe first particular, the legal lan- guage of Saxony gave great extent to the term taken in Ihe fad. It applied not merely to him who was seized in the instant of his committing the crime, but to him who was caught as he was running away. In cases of murder, those who were found with weapons in their hands were considered as taken in the fact; as also, in case of ihefl, was a person who had the key of any place in which stolen articles were found, un- less he could prove that they came there without his consent or kn(iwieda;e. The Fehm-law enumerated three tokens or proofs of guilt in these cases; the Habendc Hand (Having H(pid),oT having the proof
35G
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in his hand; the Biickentie Sthein (tooiw"' ffp/jcfflr- ance). such as Ihe wound ia tlie budyol une who was slain ; aod ihe Gichiige Miiiid (falUrins ■mouUi'), or coiiles-'ioQ uf ihe crimiuikl. Stiil, under all these cir- cumstances, it wuE necessary tha( he should betaken immediately ; for if he succeeded in making his eacape, and was caught again, as he was not this time taken in the fact, he must be proceeded againet before the tribunal with all the requisite formaUties.
The second condition wag, that there should be at least three initiated persons together, to entitle them to seize, try, and execute a person taken in the fact. These then were at the same time judges, accuserB, witnesses, and executioners. We sliall in the sequel describe their mode of procedure. It is a matter of uncertainty whellier the rule of trial by peers was obseri'ed on these occasions : what is called the Arensberg Reformation of the Fehm-law positively asserts, that, in case of a person being taken Jla- granli delicto, birth fijrmed no exemption, and the noble was to be tried like the commoner. The cases, however, in which three of the initiated happened to come on a criminal in the commission of the fact must have been of extremely rare occurrence.
When a crime had been committed, and the cri- minal bad not been taken in the fact, there remained two ways of proceeding agaiust him, namely, the inqvvdtorial and the acnaaiorial processes. It de- pended on circumstances which of these should be adopted. In the case, however, of his being initiated, it was imperative that he should be proceeded against accusatorially.
Supposing the former course to have heeu chosen, — wluch was usually done when the criminal had been token in the fact, but had contrived to escape, or when he was a man whom common fame charged (^uJ/aiid diatinct\] with a crime, — he was not cited
SECRET TRIBCNAIS OF WESTPHALIA, 337
to appear before the court or vouchsafed a hearing. He ns9 URually denounced by one of the initiated; the court then examined into the evidence of his guilt, and if it was found sufficient he was outlawed, or, as it was called, yoj/eAmtd*, and his name was inscribed in the blood-bouk. A sentence was imme- diately drawn out, in whicli all princes, lords, nobles, towns, every person, in short, especially the initiated, were called upon to lend their aid lo juslice. This sentence, of course, could orifcinally have extended only to Westphalia ; but the Fehm-courts gradually enlarged their claims; their pretensions were I'avoured by the emperors, who regarded them as a support to their authority ; and it was soon required that their sentence should be obeyed all over the empire, as emanating from the imperial power.
Unhappy now was he who w a,s forfekmed ; the wbole boily of the initiated, that is 100,000 persons, were in pursuit of iiim. If those who met him were suBicient in number, they seized him at once; if they felt themselves too weak, they called on their brethren to aid, and every one of the society was bound, when thus called on by three or four of the initiated, who averred to him on oath that the man v/as forfihmed, to help to take him. As soon as they had seized the criminal they proceeded without a moment's delay to execution ; ihey hung him on a tree by the road-side and not on a gallows, intimating thereby that they were entitled to exercise their office in the king's name anywhere they pleased, and without any re- gard to territorial jurisdiction. The halter which they employed was. agreeably to the usage of the middle ages, a withy; and they arc said lo have had so much practice, and to have arrived at such expert-
• In (Jeraian FerfrhmL Wehaieveutureci to cuinlhc woni in tbe text The Engliiti/br HnsweiB ta tlie Germiu vtr; ter- gcMim is /ergd i vtrhrtHiiferlarn,
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SKCRET SOCIETIES.
nessin this buBiness, that tbe word Fe^Tnenat last began to flignify simply to haiig, as esecutinn has came to do m Enafli-'h. It is more probable, however, that this, or Bomethiiig very near it, was tbe original signification of the word from which the tribunals took their aame. Should the malefacior resist, his captnrs were authOTised toknoclihimdownandlciilhim. luthiscase they bound the dead body to a tree, and istuck their knives beside it, to iiilimaie that he had not been slain by robbers, but had been executed in the name of the emperor.
Were (he person whowasyoj/eAmeduiiinitialed,hB had no means whatever of knowing bis danger til] the halter was actually about his neck; for the severe penalty which awaited any one who divulged the secrets of tlie Febm-courts was such as utterly to preclude the chance of a friendly hint or warning to be on bis guard. Should he, however, by any casually, such, for instance, as making his escape from tho^e who attempted to seize him, become aware of liow he stood, he might, if he thought he could clear himself, seek the protection and aid of the Sluhlherr, or of tlie emperor.
it' any one kiiowingly associated wiih or enter- tained a person who was forfekmed, he became in- volved in his danger. It was necessary, however, to prove that he had done so knowingly — a point which was to be determined by I lie emperor, or by the judge of the disirict in which the accused resided. This rule iirijmally had extended only to Westphalia, but the Fehm-judges allerwanls assumed a right of punishing in any part of the empire the person who entertained one who was/or/eAined.
Nothing can appear more harsh and unjust than this mode of procedure lo those who would apply the ideas and maxims of the present to former times. But violent evils require violent remedies ; and the disorganized state of £urope in general, and of Ger-
SECRET TRIBUNALS OF WESTPHALIA. 3S9
many in particular, during the middle ages, was such as almost lo exceed uur conception. Might it not then be argued that we ought lo regard as a benefit, rather than as an evil, any institution which set some bounds to injustice and violence, by infusing into the bosom of the evil-doer a salutary fear of the consequences? When a man committed a crime he knew that there was a tribunal to judge it from wbich his power, how- ever great it might be, would not avail to protect him ; he knew not who were the Initialed, or at whal mo- ment he might fall into their liands ; his very brother might be the person who had denounced him ; his in- timate associates might be those who would seize and execute him. So strongly was the necessity of such a power felt in general, Chat several cities, such as Nuremberg, Cologne, Strasburg, and others, applied for and obtained permission from the emperors, to proceed to pass sentence of death on evil-doers even unheard, when the evidence of common fume against them was satisfactory to the majority of the town- council. Several counts also obtained similar pi'ivi- leges, so that there were, as we may see, Fehm- courts in other places besides Westphalia, but they were far inferior to those in power, not haviug a numerous body of scliuppen at their devotion.
It is finally to be observed that it was only when the crime!) were of great magnitude, and the voiceof fame loud and constant, that the inquisitorial process could be properly adopted. In cases of a minor nature the accused had a right to be heard in his own behalf. H€re then the inquisitorial process had its hmit : if report was not sufficiently strong and overpowering, and the matter was still dubious, the offender was to be proceeded against a torially. If he was one of the initialed, such w undoubted right and privilege ir
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Accnaatorial process — Persona lialile to it — Muda of citation — Mudu of ptuccdure — Hight of appeal,
Ab we have stated above, the First inquiry when a matter was brought before a Fehm-court was, did it come within its jurisdiction, and, on its being' found to do so, the accused was summoned heibre the Public Court, and wiien he did 'not appear, or could not clear himself, the cause was transferred to the Secret , Court. We shall now consider the whole procedure specially.
The summons was at the expense uf the accuser ; it was to be written on good new parchment, with- out any erasures, and sealed with at least seven seals, to wit, those of the count and of six assessors. The seals of the different courts were difierent. The I summonses varied according to whether the accused was a free-count, a firee-schOppe, or one of the igno- rant and uninitiated, a community, a noth-schOppe, or a mere vagabond. In all cases they were to be served by schflppen. They were to have on them the name of the count, of the accuser, aud of the ac- cused, the charge, and the place where the court was to be holden. The sluhlherr was also to be pre- viously informed of it.
For a good and legal service it was requisite that two EchCppen should either serve the accused per- sonally or leave the summons openly or clandestinely at his residence, or at the place where he had taken refuge. If he did not appear to answer the charge
SECRET TRIBUNALS 07 WESTPHALIA.
within six weeks aad three Aays, tie was a^iii aum- moneH by four persons. Six weeks was the leaat mm set fur appearing to this summons, and it was requisite that a piece of imperial coin should be given with it. Should he still neg'lect appearing, he was summoned for the third and last time by six schop- pen and a count, and the term set was six weeks aad three days as before.
If the accused wys not merely initiated but also a, count, he was treated with corresponding respect. The first summons was served by seven schoppen, the second by fourteen aiid four counts, and the third by twenty-one and six counts.
The uninitiated, whether bond or free, did not share in (he preceding advantages. The summons was Kerveil on themselves, or at their residence, by a. mes- senger, and only once. There is some doubt as to the period set for their appearance, but it seems to have been in genera! the ordinary one of sii weeks and three days.
The summons of a town or community was usually addressed to all the male inhabitants. la general some of them were specially named in it ; the Arensberg Reformation directed that the names of at least thirty persons should be inserted. The term was six weeks and three days, and those who served the summons were required to be true and upright schoppen.
The noth-sclifjppe, that is, the person who had surreptitiously become possessed of the secrets of the society, was summoned but once. The usual time was allowed him for appearing to the chaise.
Should the accused be a mere vagabond, one who had no fixed residence, the course adopted was to send, six weeks and three days before the day the court was to sit, and post up four summonses at a cross-road which faced the four cardinal points, plac-
362 SICBET SOCIKTISS.
iog a piece of imperial money with each. This esteemed good and Talid service, and if the accused did not appear the court proceeded to act upon it.
Notwithstanding the privileges which the members of the society enjoyed, and the precautions which were employed to ensure their safety, and moreover the deadly vengeance likely to be taken on any one who should aggrieve them, we are not to suppose the service of a summons to appear before a Fehm-court to have been absolutely free firom danger. The tyrannic and self-willed noble, when in his own strong castle, and surrounded by his dependents, might not scruple to inflict summary chastisement on the auda- cious men who presumed to summon him to answer for his crimes before a tribunal ; the magistrates of a town also might indignantly spurn at the citation to appear before a Fehm-court, and treat its mes- sengers as offenders. To provide against these cases it was determined that it should be considered good service when the summons was affixed by night to the gate of a town or castle, to the door of the house of the accused, or to the nearest alms-house. The schoppen em{doyed were then to desire the watch- man, or some person who was going by, to inform the accused of the summons being there, and they were to take away with them a chip cut from the gate or door, as a proof of the service for the court
If the accused was resolved to obey the summons, he had only to repair on the appointed day to the place where the court was to be held, the summons being his protection. Those who would persuade us that the Fehm-courts were held by night in secret places say that the mode appointed for the accused to meet the court was for him to repair three-quarters of an hour before midnight to the next cross-roads, where a schuppe was always waiting for him, who bound his eyes and led him to where the court was
SECRET TRIBUNALS OF WESTPHALIA. 363
sitting. Tliis, however, is all mere fiction ; for the place where the court was to be held was expressly mentioned in every summons.
The Fehm-courts (like the German courts in general) were holden on a Tuesday*. If on this day the accused, or his attorney, appeared at the ap- pointed place, and no court was holden, the summons abated or lost its force ; the same was the case when admission was refused to him and his suite, a cir- cumstance which sometimes occurred. But should he not appear to the first summons, he was fined the first time thirty shillings, the second time sixty, the third time he vfasforfehmed. The court had how- ever the power of granting a further respite of six weeks and three days previous to passing this last severe sentence. This term of grace was called the King's Dag, or the Emperor Charles's Day of Grace.
The plea of necessary and unavoidable absence was, however, admitted in all cases, and the Fehm- law distinctly recognised four legal impediments to appearance, namely, imprisonment, sickness, the ser- vice of God (that is, pilgrimage), and the public ser- vice. The law also justly added the following cases : — inability to cross a river for want of a bridge or a boat, or on account of a storm ; the loss of his horse when the accused was riding to the court, so that he could not arrive in time ; absence from the country on knightly, mercantile, or other honest occasions ; and lastly, the service of his lord or master. In short, any just excuse was admitted. As long as the impediment continued in operation all proceedings against the accused were void. If the impediment arose from his being in prison, or in the public ser- vice, or that of his master, he was to notify the same by letter sealed with his seal, or else by his own oath
* In German^ Diemiag, probably Dimiag, i. e. CourUday,
y2
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and those of two or three other persons. The other impediments above enumerated were to be sworn to by himself alone.
If the accused neglected answering the two first summonses, but appeared to the third, he was re- quired to pay the two fines for non-appearance ; but if he declared himself too poor to pay them, he was obliged to place his two fore-fingers on the naked sword which lay before the court, and swear, by the death which God endured on the cross^ that such was the case. It was then remitted to him, and the court proceeded to his trial.
When a Fehm-court sat the count presided ; be- fore him lay on the table a naked sword and a withy- halter ; the former, says the law, signifying the cross on which Christ suffered and the rigour of the court, the latter denoting the punishment of evil-doers, whereby the wrath of God is appeased. On his right and lefl stood the clerks of the court, the assessors, and the audience. All were bare-headed, to signify, says the law, that they would proceed openly and fairly, punish men only for the crimes which they had committed, and cover no right with unright. They were also to have their hands uncovered to signify that they would do nothing covertly and underhand. They were to have short cloaks on their shoulders, significatory of the warm love which they should have for justice ; for as the cloak covers all the other clothes and the hody^ so should their love cover justice. They were to wear neither weapons nor harness, that no one might feel any fear of them, and to indicate that they were under the peace of the emperor, king, or empire. Finally, they were to be free from wrath and sober, that drunkenness might not lead them to pass unrighteous judgment, for drunkenness causes much wickedness.
If one who was not initiated was detected in the
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assembly, his process was a brief one. He was seized without any ceremony, his hands and feet were lied together, and he was hung on the next tree. Should a noth-schoppe be caught in the assembly, a haUer of oaken twigs wsg put about his neck, and he was thrown for nine days inio a darli dungeon, at the end of which time he was brought to trial, and, if he foiled in clearing himself, he was proceeded with according to law, that is, was lianged.
The business of the day commenced, as in German courls in general, by the count asking of the messengers if it was the day and time for holding a court under tile royal authority. An affirmative answer being given, the count then asked how many asses^'Ors should there be on the tribunal, and how the seat should be filled. When these questions were answered, he proclaimed the holding of the
Each party was permitted to bring with him as many as thirty friends to act as witnesses and com- purgators. Lest, however, they might attempt to im- pede the course of justice, they were required to ap- pear unarmed. Each party had, moreover, the right of being represented by his attorney. X''* person so employed must be initiated ; he must also be the peer of the party, and if he had been engaged ou either side he could not, during any stage of the action, be employed on the other, even with the per- mission of the party which had just engaged him. When he presented himself before the court, his cre- dentials were carefully examined, and if found strictly conformable to what the law had enjoined, they were declared valid. It was necessary that they should have been written on good, new, and sound parch- ment, without blot or erasure, and be scaled by the seals of at least two frei-schi3ppen.
The attorney of a prince of the empire appeared
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with a green cross in his right hand, and a golden penny of the empire in his left. He was also to have a glove on his right hand. If there were two attor- neys, they were both to bear crosses and pence. The attorney of a simple prince bore a silver penny. The old law, which loves to give a reason for every thing, says, " By the cross they intimate that the prince whom they represent will, in case he should be found guilty, amend his conduct according to the direction of the faith which Jesus Christ preached, and be constant and true to the holy Christian faith, and obedient to the holy empire and justice."
All the preliminaries being arranged, the trial commenced by the charge against him being made known to the accused, who was called upon for his defence. If he did not wish to defend himself in person, he was permitted to employ an advocate whom he might have brought with him. If it was a civil suit, he might, however, stay the proceedio^s at once by giving good security for his satisfying the claims of the plaintiff, in which case he was allowed the usual grace of six weeks and three days. He might also except to the competence of the court, or to the legality of the summons, or to anything else wliich would, if defective, annul the proceedings.
If the accused did not appear, the regular course was for the prosecutor to overswear him ; that is, himself to swear by the saints to the truth of what he had stated, and six true and genuine frei-schijp- pen to swear that they believed him to have spoken the truth.
The older Fehm-law made a great distinction between the initiated and the ignorant, and one very much to the advantage of the former. The accused, if initiated, was allowed to clear himself from the charge by laying his two fore-fingers on the naked sword, and swearing by the saints " that he was
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innocent of the things and the deed which the court had mentioned to him, and which the accuser charged him with, so help him God and all the saints/' He then threw a cross-penny (Kreutzer?) to the court and went his way, no one heing permitted to let or hinder him. But if he was one of the unin- itiated, he was not permitted to clear himself in this manner, and the truth of the fact was determined by the evidence given.
It is plain, however, that such a regulation as this could properly only belong to the time when none but persons of irreproachable character were initiated. As the institution degenerated, this distinction was gradually lost sight of, and facts were determined by evidence without any regard to the rank of the ac- cused.
The accuser could prevent the accused from clear- ing himself thus easily, by offering himself and six compurgators to swear to the truth of his charge. If Ihe accused wanted to outweigh this evidence, he was obliged to come forward with thirteen or twenty compurgators and swear to his innocence. If he could bring the last number he was acquitted, for the law did not allow it to be exceeded ; but if he had but thirteen, the accuser might then overpower Jiim by bringing forward twenty to vouch Ibr his veracity.
If the accuser had convicted the accuse with prayed the count to grant him a The count never took on himself the the verdict; he always directed oi to perform it. If the assessor thj difficult for his judgment, h( such was the case, and the Cj to another, who might free sibility in the same mi
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assessors be able to come to a decision, the matter was put off till the next court-day.
But if the assessor undertook the finding of the verdict, it lay with himself whether he should do so alone, or retire to take the opinion of the other asses- sors and the hy-standers. To give the verdict due force it must be found sitting, otherwise it might be objected to. Whether or not the assessor was bound to decide according to the majority of voices is un- certain. When the verdict had been found the as- sessor appeared with his colleagues before the tribunal, and delivered it to the count, who then passed sen- tence. What the penalties were for different offences was a secret known only to the initiated ; but, if they were of a capital nature, the halter, as was intimated by the one which lay before the count, was the in- strument of punishment.
Should the accused not have appeared, and been in consequence outlawed, he was forfehmed by the following awful curse ; it was declared that •* he should be excluded from the public peace, from all liberties and rights, and the highest un-peace^ un-grace^ and halter be appointed for him; that he should be cut off from all communication with any Christian people, and be cursed so that he might wither in his body, and neither become any more verdant, nor increase in any manner; that his wife should be held to be a widow, and his children orphans; that he should be without honour and without right, and given up to any one ; that his neck should be left to the ravens, liis body to all beasts, to the birds of the air and the fishes in the water ; but his soul should be commended to God," &c. &c.
If he continued a year and a day under the sen- tence of outlawry, all his goods then fell to the
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emperor or king. A prince, town, or community, that incurred the sentence of outlawry, lost thereby at once all liberties, privileges, and graces.
Should the sentence passed be a capital one, the count flung the halter over lys head out of the in- closure of the tribunal, the schoppen spat on it, and the name of the condemned was entered in the blood- book. If the criminal was present he was instantly seized, and, according to the custom of the middle ages, when, as in the East, no disgrace was attached to the office of executioner, the task of executing him was committed to the youngest schoppe present, who forthwith hung him from the nearest tree. The quality of the criminal was duly attended to ; for if he was initiated he was hung seven feet higher than any other, as being esteemed a greater criminal. If the accused was not present, all the schoppen were, as wc have already described, set in pursuit of him, and wherever they caught him they hanged him without any further ceremony.
The sentence was kept a profound secret from the uninitiated. A copy of it, drawn up in the usual form, and sealed with seven seals, was given to the accuser.
We thus see that the proceedings in the Fehm- courts were strictly consonant to justice, and even leaned to the side of mercy. But this was not all : the right of appeal was also secured to the accused in case the schoppen who consulted about the verdict did not agree, or that the witnesses did not corre- spond in their evidence; or, finally, if the verdict found was considered unjust or unsuitable ; which last case afforded a most ample field of appeal, for it must have been very rarely that a sentence did not appear unjust or over-severe to the party who was condemned. It was, however, necessary that the appeal should be made on publication of the sen-
Y 5
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tence, or at least before the court broke up. The parties were allowed to retire for a few minutes, to consult with their friends who had accompanied them. If they did not then say that they would appeal, the sentence was declared absolute, and they were for- bidden, under ;heavy penalties, to oppose it in any other court. If they did resolve to appeal, both parties were obliged to give security de lite prose- quenda. Should either party, being poor or a stranger, be unable to give security, his oath was held to be sufficient, that, as the law humanely and justly expresses it, " the stranger or the poor man may be able to seek his right in the Holy Roman Empire as well as the native or the rich man."
The appeal lay to the general chapter of the Secret closed Tribunal of the Imperial Chamber, which usu- ally, if not constantly, sat at Dortmund ; or it lay to the emperor, or king, as the supreme head of these tribunals. In case of the monarch being initiated, he could examine into the cause himself; otherwise he was obliged to commit the inquiry to such of his councillors as were initiated, or to initiated commis- sioners, and that only on Westphalian soil. Of this species of appeal there are numerous instances. Finally, the appeal might be made to the imperial lieutenant, who then inquired into the matter him- self, with the aid of some initiated schoppen, or brought it before the general chapter of which he was president. There was no appeal to the emperor from his sentence, or from that of the chapter.
There were, besides the right of appeal, other means of averting the execution of the sentence of a Fehm-court. Such was what was called replacing in the former state, of which, however, it was only the initiated who could avail himself. Sentence having been passed on a person who had not ap- peared, he might voluntarily and personally repair to
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where the secret tribunal was sitting, and sue for this favour. He was to appear before the court which had passed the sentence, accompanied by two frei-schoppen, with a halter about his neck, with white gloves on him, and his hands folded, with an imperial coin and a green cross in them. He and his companions were then to fall down on their knees, and pray for him to be placed in the condition which he was in before the proceedings commenced against him. There was also what was called the complaint of nullity, in case the prescribed form of the pro- ceedings had been violated. Some other means shall presently be noticed.
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