Examinations in England--Germany--Spain--Italy--Naples and
Provence--Sicily--Cyprus--Meeting of the Council of
Vienne--Suppression of the order--Fate of its Members--Death of
Molay.
The time fixed for the meeting of the council at Vienne was now at hand,
in which the fate of the order was to be decided. Before we proceed to
narrate its acts we will briefly state the result of the examinations of
the Templars in other countries.
The pope sent, as his judges, to England, Dieu-donne, abbot of Lagny,
and Sicard de Vaux, canon of Narbonne; and the examinations commenced at
York, London, Lincoln, and other places, on the 25th November, 1309. The
inquiry continued till the council held in London in 1311; the number of
Templars examined was two hundred and twenty-eight; that of the
witnesses against the order was seventy-two, almost all Carmelites,
Minorites, Dominicans, and Augustinians, the natural foes of the order.
The Templars were treated with great mildness; and in England, Ireland,
and Scotland, they were unanimous and constant in their assertion of the
innocence of the order. The evidence against the order was almost all
hearsay: its nature will be shown by the following specimens.
John de Goderal, a Minorite, had _heard_ that Robert de Raxat, a
Templar, had once gone about a meadow crying "Wo, wo is me! that ever I
was born. I have been forced to deny God, and give myself up to the
devil."
A Templar had said to William de Berney, in the presence of several
respectable people, at the funeral of the parish-priest of Duxworth,
near Cambridge, that a man has no more a soul, after death, than a dog.
John De Eure, a secular knight, said that he once invited the prior
William de Fenne to dine with him. After dinner the prior took from his
bosom a book, and gave it to the knight's lady to read. She found on a
paper which was fastened into the book the following words, "Christ was
not the Son of God, nor born of a virgin, but conceived by Mary, the
wife of Joseph, in the same way as all other men. Christ was not a true
but a false prophet, and was crucified for his own crimes and not for
the redemption of mankind, &c." The lady showed this paper to her
husband, who spoke to the prior, who only laughed at it; but, being
brought before a court of justice, he confessed the truth, excusing
himself on the grounds of his being illiterate and ignorant of what the
book contained.
Robert of Oteringham, a Minorite, said, "One evening my prior did not
appear at table, as relics were come from Palestine which he wished to
show the brethren. About midnight I heard a confused noise in the
chapel; I got up, and, looking through the keyhole, saw that it was
lighted. In the morning I asked a brother who was the saint in whose
honour they had celebrated the festival during the night? He turned pale
with terror, thinking I had seen something, and said 'Ask me not; and if
you value your life say nothing of it before the superiors.'"
Another witness said that the son of a Templar had peeped through the
slits of the door into the chapter-room, and seen a new member put to
death for hesitating to deny Christ. Long afterwards, being asked by
his father to become a Templar, he refused, telling what he had seen:
his father instantly slew him.
John of Gertia, a Minorite, was told by a woman named Agnes Lovecote,
who said she had it from Exvalethus, prior in London, that when in one
of the chapters a brother had refused to spit on the cross, they
suspended him in a well and covered it up. This witness also deposed to
some other enormities which he said he had heard of from the same woman,
herself speaking from hearsay.
In June, 1310, the pope wrote to King Edward, blaming his lenity and
calling on him to employ the torture in order to elicit the truth. The
council of London, after a long discussion, ordered it to be employed,
but so as not to mutilate the limbs or cause an incurable wound or
violent effusion of blood. The knights persisted in asserting their
innocence.
In Germany the different prelates examined the Templars in their
respective dioceses. Nothing was elicited. At Mentz the order was
pronounced innocent. The Wildgraf Frederic, preceptor on the Rhine,
offered to undergo the ordeal of glowing iron. He had known the Master
intimately in the East, and believed him to be as good a Christian as
any man.
The Templars in the Spanish peninsula were examined, and witnesses heard
for and against them in Castile, Leon, Aragon, and Portugal, and nothing
was proved against them. The council of Tarragona in Aragon, after
applying the torture, pronounced the order free from the stain of
heresy. At the council of Medina del Campo in Leon, one witness said
that he had heard that, when some Minorites visited the preceptor at
Villalpando, they found him reading a little book, which he instantly
locked up in three boxes, saying, "This book might fall into hands
where it may be very dangerous to the order."
The influence of the pope may be supposed to have been stronger in Italy
than in the countries above mentioned, and accordingly we find that
declarations similar to those made in France were given there. Yet it
was at Florence that the adoration of the idols, the cat, &c., was most
fully acknowledged. In the patrimony of St. Peter some confessions to
the same effect were made; but at Bologna, Cesena, and Ancona, nothing
transpired. Nine Templars maintained the innocence of the order before
the council of Ravenna. It was debated whether the torture should be
employed. Two Dominican inquisitors were for it, the remainder of the
council declared against it. It was decreed that the innocent should be
absolved, the guilty punished according to law. _Those who had revoked
the confessions made under torture, or through fear of it, were to be
regarded as innocent_--a very different rule from that acted on by King
Philip.
Charles II. of Anjou, the relation of King Philip, and the enemy of the
Templars, who were on the side of Frederick, king of Sicily, had the
Templars seized and examined in Provence and Naples. Those examined in
Provence were all serving-brethren, and some of them testified to the
impiety and idolatry of the order. Two Templars were examined at
Brindisi, in the kingdom of Naples, in June, 1310; one had denied the
cross in Cyprus, he said, six years after he had entered the order; the
other had trampled on the cross at the time of his reception. He, as
well as others, had bowed down and worshipped a grey cat in the
chapters.
In Sicily six Templars, the only ones who were arrested, deposed against
the order. One of them said he had been received in the unlawful way in
Catalonia, where, as we have just seen, the innocence of the order was
fully recognized. His evidence was full of absurdity. He said the cat
had not appeared for a long time in the chapters but that the ancient
statutes of Damietta said that it used to appear and be worshipped.
In Cyprus 110 witnesses were examined; 75 belonged to the order and
maintained its innocence; the testimony of the remainder was also in
favour of it.
We thus find that, in every place beyond the sphere of the influence of
the king of France and his creature the pope, the innocence of the order
was maintained and acknowledged; and undoubtedly the same would have
been the case in France if the proceedings against it had been regulated
by justice and the love of truth.
The time appointed for the meeting of the general council was now
arrived. On the 1st October, 1311, the pope came to Vienne, which is a
short distance from the city of Lyons, and found there 114 bishops,
besides several other prelates, already assembled. On the 13th, the
anniversary of the arrest of the Templars four years before, the council
commenced its sittings in the cathedral. The pope, in his opening
speech, stated the grounds of its having been convoked, namely, the
process against the Templars, the support of the Holy Land, the
reformation of the Church. The bishops of Soissons, Mende, Leon, and
Aquila, who had been appointed to draw up a report of the result of the
different examinations respecting the order, read it before the
assembled fathers, who then once more invited any Templars who wished to
defend the order to appear.
Though the order was now broken up and persecuted, and numbers of its
ablest members dead or languishing in dungeons with their superiors,
yet nine knights had the courage to come forward in defence of their
order, and present themselves before the council as the representatives
of from 1500 to 2000 Templars, who were still dwelling or rather lurking
in Lyons and its vicinity. The pope was not present when they appeared,
but his letter of the 11th November shows how he acted when he heard
that defenders of the order had presented themselves. Clement had these
brave knights arrested and thrown into prison, and, in real or affected
terror at the number of Templars at large, he took additional
precautions for the security of his person, and counselled the king to
do the same.
To the honour of the assembled fathers, they refused to sanction this
flagrant act of injustice. The prelates of Spain, Germany, Denmark,
England, Ireland, and Scotland, without exception; the Italians, all but
one; the French, with the exception of the archbishops of Rheims, Sens,
and Rouen, declared, but in vain, for admitting the Templars and hearing
their defence. Instead of complying with this demand of justice and
humanity, Clement suddenly put an end to the session. The winter passed
away in arguments and negociations.
Philip, whose practice it was always to look after his affairs himself,
deeming his presence necessary at Vienne, set out for that place, where
he arrived early in February, accompanied by his three sons, his
brother, and several nobles and men-at-arms. The effect of his presence
was soon perceptible; the pope assembled the cardinals and several other
prelates in a secret consistory, and abolished the order, by his sole
authority, on the 22d March, 1313.
The second session of the council was opened on the 3d April, with great
solemnity; the king of France, his sons, and his brother, gave their
presence at it, and the royal guards appeared for honour, for
protection, or for intimidation. The pope read his bull of abolition.
All present listened in silence. No one ventured to raise his voice in
the cause of justice. The wealthy and powerful order of the knights of
the Temple was suppressed. On the 2d May the bull was published, and the
order as such ceased to exist.
The order being suppressed, persecution became needless, and it
consequently ceased in a great measure. The king and the pope converted
to their own use the moveable property of the order in France. Its other
possessions were, sorely against the will of the king, assigned to the
order of the Hospitallers, who were, however, obliged to pay such large
fines to the king and pope as completely impoverished them. This
extended to all countries, except the Spanish peninsula and Majorca. The
property of the Templars in Aragon was given to the order of Our Lady of
Montesa, which was founded in 1317. Its destination was to combat the
Moors; its habit was similar to that of the Templars; and it might,
therefore, be almost called the same order. Diniz, the able and
enlightened king of Portugal, did not suppress the order, whose
innocence his prelates had recognised. To yield a show of obedience to
the papal will, he made it change its name, and the great-prior of the
Templars in Portugal became the master of the Order of Christ, which has
continued to the present times.
With respect to the remaining Templars, who were in prison, it was
ordered in council that those who should be found guiltless should be
set at liberty, and maintained out of the property of the order; that
the guilty, if they confessed and lamented their offences, should be
treated with mildness; if they did not, dealt with according to the
ecclesiastical law, and kept in custody in the former temple-houses and
in the convents. Those who had escaped were, if they did not appear
within a year before the council or their diocesan, to be
excommunicated.
Most of the knights were immediately set at liberty; but the property of
the order was all gone, and no means of support remained for them: they
were, therefore, reduced to the greatest distress, and many of them
obliged to submit to the most menial employment in order to gain a
livelihood. A great number were received into the order of St. John, on
the same footing as they had stood on in their own order--a strong proof
that the guilt of the order of the Templars was not, by any means,
regarded as proved. Gradually, as the members died off, or merged into
other orders, the name of the Templars fell into oblivion, or was only
recollected with pity for their unmerited fate.
While the noble order over which he had presided was thus suppressed,
its members scattered, its property bestowed on others, the Master,
James de Molay, with his three companions, the great-prior of Normandy,
Hugh de Peyraud, visiter of France, and Guy, brother to the Dauphin of
Auvergne, still languished in prison. Molay had there but one attendant,
his cook; the allowance made to him was barely sufficient to procure him
common necessaries, and life had now lost all its value in his eyes. The
pope at length determined to inform the captives of the fate destined
for them.
A papal commission, composed of the bishop of Alba and two other
cardinals, proceeded to Paris, not to hear the prisoners, but, taking
their guilt for proved, to pronounce their sentence. To give all
publicity to this act, probably in accordance with the desire of the
king, a stage was erected in front of the church of Notre Dame, on which
the three commissioners, with the archbishop of Sens and several other
prelates, took their places, on the 18th March, 1314. An immense
concourse of people stood around. The four noble prisoners were
conducted from their dungeons, and led up on the stage. The cardinal of
Alba read out their former confessions, and pronounced the sentence of
perpetual imprisonment. He was then proceeding to expose the guilt of
the order, when the Master interrupted him, and thus spoke, taking all
the spectators to witness:--
"It is just that, in so terrible a day, and in the last moments of my
life, I should discover all the iniquity of falsehood, and make the
truth to triumph. I declare, then, in the face of heaven and earth, and
acknowledge, though to my eternal shame, that I have committed the
greatest of crimes; but it has been the acknowledging of those which
have been so foully charged on the order. I attest, and truth obliges me
to attest, that it is innocent. I made the contrary declaration only to
suspend the excessive pains of torture, and to mollify those who made me
endure them. I know the punishments which have been inflicted on all the
knights who had the courage to revoke a similar confession; but the
dreadful spectacle which is presented to me is not able to make me
confirm one lie by another. The life offered me on such infamous terms I
abandon without regret."
Molay was followed by Guy in his assertion of the innocence of the
order; the other two remained silent. The commissioners were confounded,
and stopped. The intelligence was conveyed to the king, who, instantly
calling his council together, without any spiritual person being
present, condemned the two knights to the flames.
A pile was erected on that point of the islet in the Seine where
afterwards was erected the statue of Henry IV., and the following day
Molay and his companion were brought forth and placed upon it. They
still persisted in their assertion of the innocence of the order. The
flames were first applied to their feet, then to their more vital parts.
The fetid smell of their burning flesh infected the surrounding air, and
added to their torments; yet still they persevered in their
declarations. At length death terminated their misery. The spectators
shed tears at the view of their constancy, and during the night their
ashes were gathered up to be preserved as relics.
[Illustration: Portrait of last Grand Master.]
It is mentioned as a tradition, by some historians, that Molay, ere he
expired, summoned Clement to appear within forty days before the Supreme
Judge, and Philip to the same tribunal within the space of a year. The
pontiff actually _did_ die of a cholic on the night of the 19th of the
following month, and, the church in which his body was laid taking fire,
the corpse was half consumed. The king, before the year had elapsed,
died of a fall from his horse. Most probably it was these events which
gave rise to the tradition, which testifies the general belief of the
innocence of the Templars. It was also remarked that all the active
persecutors of the order perished by premature or violent deaths.
It remains to discuss the two following points:--Did the
religio-military order of the Knights Templars hold a secret doctrine
subversive of religion and morality? Has the order been continued down
to our own days?
We have seen what the evidence against the Templars was, and it is very
plain that such evidence would not be admitted in any modern court of
justice. It was either hearsay, or given by persons utterly unworthy of
credit, or wrung from the accused by agony and torture. The articles
themselves are absurd and contradictory. Are we to believe that the same
men had adopted the pure deism of the Mahommedans, and were guilty of a
species of idolatry[103] almost too gross for the lowest superstition?
But when did this corruption commence among the Templars? Were those
whom St. Bernard praised as models of Christian zeal and piety, and whom
the whole Christian world admired and revered, engaged in a secret
conspiracy against religion and government? Yes, boldly replies Hammer,
the two humble and pious knights who founded the order were the pupils
and secret allies of the Mahommedan Ismaelites. This was going too far
for Wilike, and he thinks that the guilt of introducing the secret
doctrine lies on the chaplains; for he could discern that the doctrines
of gnosticism, which the Templars are supposed to have held, were beyond
the comprehension of illiterate knights, who, though they could fight
and pray, were but ill qualified to enter into the mazes of mystic
metaphysics. According, therefore, to one party, the whole order was
corrupt from top to bottom; according to another, the secrets were
confined to a few, and, contrary to all analogy, the heads of the order
were frequently in ignorance of them. Neither offer any thing like
evidence in support of their assumption.
[Footnote 103: Almost every charge brought against the Templars had been
previously made against the Albigenses, with how much truth every one is
aware.]
The real guilt of the Templars was their wealth and their pride[104]:
the last alienated the people from them, the former excited the cupidity
of the king of France. Far be it from us to maintain that the morals of
the Templars were purer than those of the other religious orders. With
such ample means as they possessed of indulging all their appetites and
passions, it would be contrary to all experience to suppose that they
always restrained them, and we will even concede that some of their
members were obnoxious to charges of deism, impiety, breaches of their
religious vows, and gross licentiousness. We only deny that such were
the rules of the order. Had they not been so devoted as they were to the
Holy See they would perhaps have come down to us as unsullied as the
knights of St. John[105]; but they sided with Pope Boniface against
Philip the Fair, and a subservient pontiff sacrificed to his own avarice
and personal ambition the most devoted adherents of the court of
Rome[106].
[Footnote 104: Our readers will call to mind the well-known anecdote of
King Richard I. When admonished by the zealous Fulk, of Neuilly, to get
rid of his three favourite daughters, pride, avarice, and
voluptuousness,--"You counsel well," said the king, "and I hereby
dispose of the first to the Templars, of the second to the Benedictines,
and of the third to my prelates."]
[Footnote 105: Similar charges are said to have been brought against the
Hospitallers in the year 1238, but without effect. There was no Philip
the Fair at that time in France.]
[Footnote 106: Clement, in a bull dated but four days after that of the
suppression, acknowledged that the whole of the evidence against the
order amounted only to suspicion!]
We make little doubt that any one who coolly and candidly considers the
preceding account of the manner in which the order was suppressed will
readily concede that the guilt of its members was anything but proved.
It behoves their modern impugners to furnish some stronger proofs than
any they have as yet brought forward. The chief adversary of the
Templars at the present day is a writer whose veracity and love of
justice are beyond suspicion, and who has earned for himself enduring
fame by his labours in the field of oriental literature, but in whose
mind, as his most partial friends must allow, learning and imagination
are apt to overbalance judgment and philosophy[107]. He has been replied
to by Raynouard, Muenter, and other able advocates of the knights.
[Footnote 107: We mean the illustrious Jos. von Hammer, whose essay on
the subject is to be found in the sixth volume of the Mines de l'Orient,
where it will be seen that he regards Sir W. Scott, in his Ivanhoe, as a
competent witness against the Templars, on account of his _correct and
faithful_ pictures of the manners and opinions of the middle ages. We
apprehend that people are beginning now to entertain somewhat different
ideas on the subject of our great romancer's fidelity, of which the
present pages present some instances.]
We now come to the question of the continuance of the order to the
present day. That it has in some sort been transmitted to our times is a
matter of no doubt; for, as we have just seen, the king of Portugal
formed the Order of Christ out of the Templars in his dominions. But our
readers are no doubt aware that the freemasons assert a connexion with
the Templars, and that there is a society calling themselves Templars,
whose chief seat is at Paris, and whose branches extend into England and
other countries. The account which they give of themselves is as
follows:--
James de Molay, in the year 1314, in anticipation of his speedy
martyrdom, appointed Johannes Marcus Lormenius to be his successor in
his dignity. This appointment was made by a regular well-authenticated
charter, bearing the signatures of the various chiefs of the order, and
it is still preserved at Paris, together with the statutes, archives,
banners, &c., of the soldiery of the Temple. There has been an unbroken
succession of grand-masters down to the present times, among whom are to
be found some of the most illustrious names in France. Bertrand du
Guesclin was grand-master for a number of years; the dignity was
sustained by several of the Montmorencies; and during the last century
the heads of the society were princes of the different branches of the
house of Bourbon. Bernard Raymond Fabre Palaprat is its head at present,
at least was so a few years ago[108].
[Footnote 108: See Manuel des Templiers. As this book is only sold to
members of the society, we have been unable to obtain a copy of it. Our
account has been derived from Mills's History of Chivalry. That this
writer should have believed it implicitly is, we apprehend, no proof of
its truth.]
This is no doubt a very plausible circumstantial account; but, on
applying the Ithuriel spear of criticism to it, various ugly shapes
resembling falsehood start up. Thus Molay, we are told, appointed his
successor in 1314. He was put to death on the 18th March of that year,
and the order had been abolished nearly a year before. Why then did he
delay so long, and why was he become so apprehensive of martyrdom at
that time, especially when, as is well known, there was then no
intention of putting him to death? Again, where were the chiefs of the
society at that time? How many of them were living? and how could they
manage to assemble in the dungeon of Molay and execute a formal
instrument! Moreover, was it not repugnant to the rules and customs of
the Templars for a Master to appoint his successor? These are a few of
the objections which we think may be justly made; and, on the whole, we
feel strongly disposed to reject the whole story.
As to the freemasons, we incline to think that it was the accidental
circumstance of the name of the Templars which has led them to claim a
descent from that order; and it is possible that, if the same fate had
fallen on the knights of St. John, the claim had never been set up. We
are very far from denying that at the time of the suppression of the
order of the Temple there was a secret doctrine in existence, and that
the overthrow of the papal power, with its idolatry, superstition, and
impiety, was the object aimed at by those who held it, and that
freemasonry may possibly be that doctrine under another name[109]. But
we are perfectly convinced that no proof of any weight has been given of
the Templars' participation in that doctrine, and that all probability
is on the other side. We regard them, in fine, whatever their sins may
have been, as martyrs--martyrs to the cupidity, blood-thirstiness, and
ambition of the king of France.
[Footnote 109: This has, we think, been fully proved by Sr. Rossetti. It
must not be concealed that this writer strongly asserts that the
Templars were a branch of this society.]
THE
SECRET TRIBUNALS OF WESTPHALIA[110].
[Footnote 110: Dr. Berck has, in his elaborate work on this subject
(_Geschichte der Westphaelischen Femgerichte_, Bremen, 1815), collected,
we believe, nearly all the information that is now attainable. This work
has been our principal guide; for, though we have read some others, we
cannot say that we have derived any important information from them. As
the subject is in its historical form entirely new in English
literature, we have, at the hazard of appearing occasionally dry, traced
with some minuteness the construction and mode of procedure of these
celebrated courts.]
CHAPTER I.
Introduction--The Original Westphalia--Conquest of the Saxons by
Charlemagne--His Regulations--Dukes of Saxony--State of
Germany--Henry the Lion--His Outlawry--Consequences of it--Origin
of German Towns--Origin of the Fehm-gerichte, or Secret
Tribunals--Theories of their Origin--Origin of their
Name--Synonymous Terms.
We are now arrived at an association remarkable in itself, but which has
been, by the magic arts of romancers, especially of the great archimage
of the north, enveloped in darkness, mystery, and awe, far beyond the
degree in which such a poetical investiture can be bestowed upon it by
the calm inquirer after truth. The gloom of midnight will rise to the
mind of many a reader at the name of the Secret Tribunals of
Westphalia: a dimly lighted cavern beneath the walls of some castle, or
peradventure Swiss _hostelrie_, wherein sit black-robed judges in solemn
silence, will be present to his imagination, and he is prepared with
breathless anxiety to peruse the details of deeds without a name[111].
[Footnote 111: The romantic accounts of the Secret Tribunals will be
found in Sir W. Scott's translation of Goethe's Goetz von Berlichingen,
and in his House of Aspen and Anne of Geierstein. From various passages
in Sir W. Scott's biographical and other essays, it is plain that he
believed such to be the true character of the Secret Tribunals.]
We fear that we cannot promise the full gratification of these
high-wrought expectations. Extraordinary as the Secret Tribunals really
were, we can only view them as an instance of that compensating
principle which may be discerned in the moral as well as in the natural
empire of the Deity; for, during the most turbulent and lawless period
of the history of Germany, almost the sole check on crime, in a large
portion of that country, was the salutary terror of these Fehm-Gerichte,
or Secret Tribunals. And those readers who have taken their notions of
them only from works of fiction will learn with surprise that no courts
of justice at the time exceeded, or perhaps we might say equalled, them
in the equity of their proceedings.
Unfortunately their history is involved in much obscurity, and we
cannot, as in the case of the two preceding societies, clearly trace
this association from its first formation to the time when it became
evanescent and faded from the view. While it flourished, the dread and
the fear of it weighed too heavily on the minds of men to allow them to
venture to pry into its mysteries. Certain and instantaneous death was
the portion of the stranger who was seen at any place where a tribunal
was sitting, or who dared so much as to look into the books which
contained the laws and ordinances of the society. Death was also the
portion of any member of the society who revealed its secrets; and so
strongly did this terror, or a principle of honour, operate, that, as
AEneas Sylvius (afterwards Pope Pius II.), the secretary of the Emperor
Frederick III., assures us, though the number of the members usually
exceeded 100,000, no motive had ever induced a single one to be
faithless to his trust. Still, however, sufficient materials are to be
found for satisfying all reasonable curiosity on the subject.
To ascertain the exact and legal sphere of the operation of this
formidable jurisdiction, and to point out its most probable origin, are
necessary preliminaries to an account of its constitution and its
proceedings. We shall therefore commence with the consideration of these
points.
Westphalia, then, was the birth-place of this institution, and over
Westphalia alone did it exercise authority. But the Westphalia of the
middle ages did not exactly correspond with that of the later times. In
a general sense it comprehended the country between the Rhine and the
Weser; its southern boundary was the mountains of Hesse; its northern,
the district of Friesland, which at that time extended from Holland to
Sleswig. In the records and law-books of the middle ages, this land
bears the mystic appellation of the _red earth_, a name derived, as one
writer thinks, from the _gules_, or red, which was the colour of the
field in the ducal shield of Saxony; another regards it as synonymous
with the _bloody earth_; and a third hints that it may owe its origin to
the _red_ colour of the soil in some districts of Westphalia.
This land formed a large portion of the country of the Saxons, who,
after a gallant resistance of thirty years, were forced to submit to
the sway of Charlemagne, and to embrace the religion of their conqueror.
The Saxons had hitherto lived in a state of rude independence, and their
dukes and princes possessed little or no civil power, being merely the
presidents in their assemblies and their leaders in war. Charlemagne
thought it advisable to abolish this dignity altogether, and he extended
to the country of the Saxons the French system of counts and counties.
Each count was merely a royal officer who exercised in the district over
which he was placed the civil and military authority. The _missi
dominici_ or _regii_ were despatched from the court to hold their
visitations in Saxony, as well as in the other dominions of Charles, and
at these persons of all classes might appear and prefer their complaints
to the representative of the king, if they thought themselves aggrieved
by the count or any of the inferior officers.
In the reign of Louis the German, the excellent institutions of
Charlemagne had begun to fall into desuetude; anarchy and violence had
greatly increased. The incursions of the Northmen had become most
formidable, and the Vends[112] also gave great disturbance to Germany.
The Saxon land being the part most immediately exposed to invasion, the
emperor resolved to revive the ancient dignity of dukes, and to place
the district under one head, who might direct the energies of the whole
people against the invaders. The duke was a royal lieutenant, like the
counts, only differing from them in the extent of the district over
which he exercised authority. The first duke of Saxony was Count Ludolf,
the founder of Gandersheim; on his death the dignity was conferred on
his son Bruno, who, being slain in the bloody battle of Ebsdorf fought
against the Northmen, was succeeded by his younger brother Otto, the
father of Henry the Fowler.
[Footnote 112: The Vends (_Wenden_) were a portion of the Slavonian race
who dwelt along the south coast of the Baltic.]
On the failure of the German branch of the Carlovingians, the different
nations which composed the Germanic body appointed Conrad the Franconian
to be their supreme head; for a new enemy, the Magyars, or Hungarians,
now harassed the empire, and energy was demanded from its chief. Of this
Conrad himself was so convinced, that, when dying, after a short reign,
he recommended to the choice of the electors, not his own brother, but
Henry the Fowler, Duke of Saxony, who had, in his conflicts with the
Vends and the Northmen, given the strongest proofs of his talents and
valour. Henry was chosen, and the measures adopted by him during his
reign, and the defeat of the Hungarians, justified the act of his
elevation.
On the death of Henry, his son Otto, afterwards justly styled the Great,
was unanimously chosen to succeed him in the imperial dignity. Otto
conferred the Duchy of Saxony on Herman Billung. From their constant
warfare with the Vends and the Northmen, the Saxons were now esteemed
the most valiant nation in Germany, and they were naturally the most
favoured by the emperors of the house of Saxony. This line ending with
Henry II. in 1024, the sceptre passed to that of Franconia, under which
and the succeeding line of Suabia, owing to the contests with the popes
about investitures and to various other causes, the imperial power
greatly declined in Germany; anarchy and feuds prevailed to an alarming
extent; the castles of the nobles became dens of robbers; and law and
justice were nowhere to be found.
The most remarkable event of this disastrous period, and one closely
connected with our subject, is the outlawry of Henry the Lion, Duke of
Saxony and Bavaria. Magnus, the last of the Billungs of Saxony, died,
leaving only two daughters, of whom the eldest was married to Henry the
Black, Duke of Bavaria, who consequently had, according to the maxims of
that age, a right to the Duchy of Saxony; but the Emperor Henry V.
refused to admit his claim, and conferred it on Lothaire of Supplinburg.
As, however, Henry the Black's son, Henry the Proud, was married to the
only daughter of Lothaire, and this prince succeeded Henry V. in the
empire, Henry found no difficulty in obtaining the Duchy of Saxony from
his father-in-law, who also endeavoured to have him chosen his successor
in the imperial dignity. But the other princes were jealous of him, and
on the death of Lothaire they hastily elected Conrad of Suabia, who,
under the pretext that no duke should possess two duchies, called on
Henry to resign either Saxony or Bavaria. On his refusal, Conrad, in
conjunction with the princes of the empire, pronounced them both
forfeited, and conferred Bavaria on the Margraf of Austria, and Saxony
on Albert the Bear, the son of the second daughter of Duke Magnus of
Saxony.
Saxony was, however, afterwards restored by Conrad to Henry the Lion,
son of Henry the Proud, and Conrad's successor, Frederick Barbarossa,
gave him again Bavaria. Henry had himself carried his arms from the Elbe
to the Baltic, and conquered a considerable territory from the Vends,
which he regarded as his own peculiar principality. He was now master of
the greater part of Germany, and it was quite evident that he must
either obtain the imperial dignity or fall. His pride and his severity
made him many enemies; but as he had no child but a daughter, who was
married to a cousin of the emperor, his power was regarded without much
apprehension. It was, however, the ambition of Henry to be the father of
a race of heroes, and, after the fashion of those times, he divorced his
wife and espoused Matilda, daughter of Henry II. of England, by whom he
had four sons. Owing to this and other circumstances all friendly
feeling ceased between Henry and the emperor, whom, however, he
accompanied on the expedition to Italy, which terminated in the battle
of Legnano. But he suddenly drew off his forces and quitted the imperial
army on the way, and Frederick, imputing the ill success which he met
with in a great measure to the conduct of the Duke of Saxony, was, on
his return to Germany, in a mood to lend a ready ear to any charges
against him. These did not fail soon to pour in: the Saxon clergy, over
whom he had arrogated a right of investiture, appeared as his principal
accusers. Their charges, which were partly true, partly false, were
listened to by Frederick and the princes of the empire, and the downfall
of Henry was resolved upon. He was thrice summoned, but in vain, to
appear and answer the charges made against him. He was summoned a fourth
time, but to as little purpose; the sentence of outlawry was then
formally pronounced at Wuertzburg. He denied the legality of the
sentence, and attempted to oppose its execution; several counts stood by
him in his resistance; but he was forced to submit and sue for grace at
Erfurt. The emperor pardoned him and permitted him to retain his
allodial property on condition of his leaving Germany for three years.
He was deprived of all his imperial fiefs, which were immediately
bestowed upon others.
In the division of the spoil of Henry the Lion Saxony was cut up into
pieces; a large portion of it went to the Archbishop of Cologne; and
Bernhard of Anhalt, son of Albert the Bear, obtained a considerable
part of the remainder; the supremacy over Holstein, Mecklenburg, and
Pomerania, ceased; and Luebeck became a free imperial city. All the
archbishops, bishops, counts, and barons, seized as much as they could,
and became immediate vassals of the empire. Neither Bernhard nor the
Archbishop of Cologne was able completely to establish his power over
the portion assigned him, and lawless violence everywhere prevailed.
"There was no king in Israel, and every one did that which was right in
his own eyes," is the language of the Chronicler[113].
[Footnote 113: Arnold of Luebeck, Chronica Slavorum, l. iii. c. 1., apud
Leibnitz Scriptores Rerum Brunsvicarum, t. ii. p. 653.]
We here again meet an instance of the compensatory principle which
prevails in the arrangements of Providence. It was the period of
turbulence and anarchy succeeding the outlawry of Henry the Lion which
gave an impulse to the building or enlarging of towns in the north of
Germany. The free Germans, as described by Tacitus, scorned to be pent
up within walls and ditches; and their descendants in Saxony would seem
to have inherited their sentiments, for there were no towns in that
country till the time of Henry the Fowler. As a security against the
Northmen, the Slavs, and the Magyars, this monarch caused pieces of land
to be enclosed by earthen walls and ditches, within which was collected
a third part of the produce of the surrounding country, and in which he
made every ninth man of the population fix his residence. The courts of
justice were held in these places to give them consequence; and, their
strength augmenting with their population, they became towns capable of
resisting the attacks of the enemy, and of giving shelter and defence to
the people of the open country. Other towns, such as Muenster, Osnabrueck
(_Osnaburgh_), Paderborn, and Minden, grew up gradually, from the desire
of the people to dwell close to abbeys, churches, and episcopal
residences, whence they might obtain succour in time of temporal or
spiritual need, and derive protection from the reverence shown to the
church. A third class of towns owed their origin to the stormy period of
which we now write; for the people of the open country, the victims of
oppression and tyranny, fled to where they might, in return for their
obedience, meet with some degree of protection, and erected their houses
at the foot of the castle of some powerful nobleman. These towns
gradually increased in power, with the favour of the emperors, who, like
other monarchs, viewing in them allies against the excessive power of
the church and the nobility, gladly bestowed on them extensive
privileges; and from these originated the celebrated Hanseatic League,
to which almost every town of any importance in Westphalia belonged,
either mediately or immediately.
But the growth of cities, and the prosperity and the better system of
social regulation which they presented, were not the only beneficial
effects which resulted from the overthrow of the power of Henry the
Lion. There is every reason to conclude that it was at this period that
the Fehm-gerichte, or Secret Tribunals, were instituted in Westphalia;
at least, the earliest document in which there is any clear and express
mention of them is dated in the year 1267. This is an instrument by
which Engelbert, Count of the Mark, frees one Gervin of Kinkenrode from
the feudal obligations for his inheritance of Broke, which was in the
county of Mark; and it is declared to have been executed at a place
named Berle, the court being presided over by Bernhard of Henedorp, and
the _Fehmenotes_ being present. By the Fehmenotes were at all times
understood the initiated in the secrets of the Westphalian tribunals; so
that we have here a clear and decisive proof of the existence of these
tribunals at that time. In another document, dated 1280, the Fehmenotes
again appear as witnesses, and after this time the mention of them
becomes frequent.
We thus find that, in little more than half a century after the outlawry
of Henry the Lion, the Fehm-gerichte were in operation in Westphalia;
and there is not the slightest allusion to them before that date, or any
proof, at all convincing, to be produced in favour of their having been
an earlier institution. Are we not, therefore, justified in adopting the
opinion of those who place their origin in the first half of the
thirteenth century, and ascribe it to the anarchy and confusion
consequent on the removal of the power which had hitherto kept within
bounds the excesses of the nobles and the people? And is it a conjecture
altogether devoid of probability that some courageous and upright men
may have formed a secret determination to apply a violent remedy to the
intolerable evils which afflicted the country, and to have adopted those
expedients for preserving the public peace, out of which gradually grew
the Secret Tribunals? or that some powerful prince of the country,
acting from purely selfish motives, devised the plan of the society, and
appointed his judges to make the first essay of it[114]?
[Footnote 114: Berck, pp. 259, 260.]
Still it must be confessed that the origin of the Fehm-gerichte is
involved in the same degree of obscurity which hangs over that of the
Hanseatic league and so many other institutions of the middle ages; and
little hopes can be entertained of this obscurity ever being totally
dispelled. Conjecture will, therefore, ever have free scope of the
subject; and the opinion which we have just expressed ourselves as
inclined to adopt is only one of nine which have been already advanced
on it. Four of these carry back the origin of the Fehm-gerichte to the
time of Charlemagne, making them to have been either directly instituted
by that great prince, or to have gradually grown out of some of his
other institutions for the better governing of his states. A fifth
places their origin in the latter half of the eleventh century, and
regards them as an invention of the Westphalian clergy for forwarding
the views of the popes in their attempt to arrive at dominion over all
temporal princes. A sixth ascribes the institution to St. Engelbert,
Archbishop of Cologne, to whom the Emperor Frederic II. committed the
administration of affairs in Germany during his own absence in Sicily,
and who was distinguished for his zeal in the persecution of heretics.
He modelled it, the advocates of this opinion say, on that of the
Inquisition, which had lately been established. The seventh and eighth
theories are undeserving of notice. On the others we shall make a few
remarks.
The first writers who mention the Fehm-gerichte are Henry of Hervorden,
a Dominican, who wrote against them in the reign of the Emperor Charles
IV., about the middle of the fourteenth century; and AEneas Sylvius, the
secretary of Frederic III., a century later. These writers are among
those who refer the origin of the Fehm-gerichte to Charlemagne, and such
was evidently the current opinion of the time--an opinion studiously
disseminated by the members of the society, who sought to give it
consequence in the eyes of the emperor and people, by associating it
with the memory of the illustrious monarch of the West. There is,
however, neither external testimony nor internal probability to support
that opinion. Eginhart, the secretary and biographer of Charlemagne, and
all the other contemporary writers, are silent on the subject; the
valuable fragments of the ancient Saxon laws collected in the twelfth
century make not the slightest allusion to these courts; and, in fine,
their spirit and mode of procedure are utterly at variance with the
Carlovingian institutions. As to the hypothesis which makes Archbishop
Engelbert the author of the Fehm-gerichte, it is entirely unsupported by
external evidence, and has nothing in its favour but the coincidence, in
point of time, of Engelbert's administration with the first account
which we have of this jurisdiction, and the similarity which it bore in
the secrecy of its proceedings to that of the Holy Inquisition--a
resemblance easy to be accounted for, without any necessity for having
recourse to the supposition of the one being borrowed from the other.
We can therefore only say with certainty that, in the middle of the
thirteenth century, the Fehm-gerichte were existing and in operation in
the country which we have described as the Westphalia of the middle
ages. To this we may add that this jurisdiction extended over the whole
of that country, and was originally confined to it, all the courts in
other parts of Germany, which bore a resemblance to the Westphalian
Fehm-gerichte, being of a different character and nature[115].
[Footnote 115: See Berck, l. i. c. 5, 6, 7.]
It remains, before proceeding to a description of these tribunals, to
give some account of the origin of their name. And here again we find
ourselves involved in as much difficulty and uncertainty as when
inquiring into the origin of the society itself.
Almost every word in the German and cognate languages, which bears the
slightest resemblance to the word _Fehm_[116], has been given by some
writer or other as its true etymon. It is unnecessary, in the present
sketch of the history of the Fehm-gerichte, to discuss the merits of
each of the claimants: we shall content ourselves with remarking that,
among those which appear to have most probability in their favour, is
the Latin _Fama_, which was first proposed by Leibnitz. At the time when
we have most reason for supposing these tribunals to have been
instituted the Germans were familiar with the language of the civil and
canonical laws; the Fehm-gerichte departed from the original maxim of
German law, which was--_no accuser, no judge_, and, in imitation of
those foreign laws[117], proceeded on _common fame_, and without any
formal accusation against persons suspected of crime or of evil courses.
Moreover, various tribunals, not in Westphalia, which proceeded in the
same manner, on common report, were also called Fehm-gerichte, which may
therefore be interpreted Fame-tribunals, or such as did not, according
to the old German rule, require a formal accusation, but proceeded to
the investigation of the truth of any charge which common fame or
general report made against any person--a dangerous mode of proceeding,
no doubt, and one liable to the greatest abuse, but which the lawless
state of Germany at that period, and the consequent impunity which great
criminals would else have enjoyed, from the fear of them, which would
have kept back accusers and witnesses, perhaps abundantly justified. It
is proper to observe, however, that _fem_ appears to be an old German
word, signifying condemnation; and it is far from being unlikely, after
all, that the Fehm-gerichte may mean merely the tribunals of
condemnation--in other words, courts for the punishment of crime, or
what we should call criminal courts.
[Footnote 116: Spelt also _Fem_, _Faem_, _Vem_, _Vehm_. In German _f_ and
_v_ are pronounced alike, as also are _ae_ and _e_. The words from which
_Fahm_ has been derived are _Fahne_, a standard; _Femen_, to skin;
_Fehde_, feud; _Vemi_ (i. e. vae mihi), wo is me; _Ve_ or _Vaem_, which
Dreyer says signifies, in the northern languages, _holy_; _Vitte_ (old
German), prudence; _Vette_, punishment; the _Fimmiha_ of the Salic law;
Swedish _Fem_, Islandic _Fimm_, five, such being erroneously supposed to
be the number of judges in a Fehm, or court. Finally, Moezer deduces it
from _Fahm_, which he says is employed in Austria and some other
countries for _Rahm_, cream.]
[Footnote 117: Common fame was a sufficient ground of arraignment in
England, also, in the Anglo-Saxon period.]
The Fehm-gerichte was not the only name which these tribunals bore; they
were also called _Fehm-ding_, the word _ding_[118] being, in the middle
ages, equivalent to _gericht_, or tribunal. They were also called the
Westphalian tribunals, as they could only be holden in the _Red Land_,
or Westphalia, and only Westphalians were amenable to their
jurisdiction. They were further styled free-seats (_Frei-stuehle_,
_stuehl_ also being the same as _gericht_), free-tribunals, &c., as only
freemen were subject to them. A Frei-gericht, however, was not a
convertible term with a Westphalian Fehm-gericht; the former was the
genus, the latter the species. They are in the records also named
Secret Tribunals, (_Heimliche Gerichte_), and Silent Tribunals
(_Stillgerichte_), from the secrecy of their proceedings; Forbidden
Tribunals (_Verbotene Gerichte_), the reason of which name is not very
clear; Carolinian Tribunals, as having been, as was believed, instituted
by Charles the Great; also the Free Bann, which last word was equivalent
to _jurisdiction_. A Fehm-gericht was also termed a _Heimliche Acht_,
and a _Heimliche beschlossene Acht_ (secret and secret-closed tribunal);
_acht_ also being the same as _gericht_, or tribunal.
[Footnote 118: In the northern languages, _Ting_; hence the _Store Ting_
(in our journals usually written _Storthing_), i. e. _Great Ting_, or
Parliament of Norway.]
CHAPTER II.
The Tribunal-Lord--The Count--The Schoeppen--The Messengers--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 documents 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
punishment. The Fehm-gerichte, therefore, regarded 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 tribunal-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 imperial lieutenant in
Westphalia. Each tribunal-lord had his peculiar district, within which
he had the power of erecting-tribunals, and beyond which his authority
did not extend. He either presided in person in his court, or he
appointed a count (_Freigraf_) to supply his place. The rights of a
stuhlherr[119] had some resemblance to those of the owner of an advowson
in this country. He had merely the power of nominating either himself or
another person as count; the right to inflict capital punishment was to
be conferred by the emperor or his deputy. To this end, when a
tribunal-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 he stood in no
ill repute; that he knew of no open crime he had committed; and that he
believed him to be perfectly well qualified to preside over the county.
[Footnote 119: _Stuhlherr_ is _tribunal-lord_, or, literally, _lord of
the seat_ (of judgment); _stuhl_ (_Anglice_, stool) being a seat, or
chair.]
The count, on being appointed, was to swear that he would judge truly
and justly, according to the law and the regulations of the emperor
Charles and the _closed tribunal_; that he would be obedient to the
emperor or king, and his lieutenant; and that he would repair, at least
once in each year, to the general chapter which was to be held on the
Westphalian land, and give an account of his conduct, &c.
The income of the free-count arose from fees and a share in fines; he
had also a fixed allowance in money or in kind from the stuhlherr. Each
free-schoeppe who was admitted made him a present, _to repair_, as the
laws express it, _his countly 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 any charge paid the count a
cross-penny. He had a share of all the fines imposed in his court, and a
fee on citations, &c.
There was in general but one count to each tribunal; but instances occur
of there being as many as seven or eight. The count presided in the
court, and the citations of the accused proceeded from him.
Next to the count were the assessors or (_Schoeppen_)[120]. 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 oath for the fitness of
the candidate to be admitted. It was necessary that he should be a
German by birth; born in wedlock of free parents; of the Christian
religion; neither ex-communicate nor outlawed; not involved in any
Fehm-gericht process; a member of no spiritual order, &c.
[Footnote 120: This word, which cannot be adequately translated, is the
low-Latin _Scabini_, the French _Echevins_. We shall take the liberty of
using it throughout. The schoeppen were called frei-(_free_) schoeppen, as
the count was called _frei-graf_, the court _frei-stuhl_, on account of
the jurisdiction of the tribunals being confined to freemen.]
These schoeppen were divided into two classes, the knightly, and the
simple, respectable assessors; for, as the maxim that every man should
be 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 schoeppen were named Ignorant; when they had been initiated
they were called Knowing (_Wissende_) or Fehmenotes. It was only these
last who were admitted to the secret-tribunal. The initiation of a
schoeppe was attended with a good deal of ceremony. He appeared
bare-headed before the assembled tribunal, and was there questioned
respecting his qualifications. Then, kneeling down, with the thumb and
forefinger of his right hand on a naked sword and a halter, he
pronounced the following oath after the count:--
"I promise, on the holy marriage, that I will, from henceforth, aid,
keep, and conceal the holy Fehms, from wife 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 the secret
jurisdiction of the emperor, whether I know it to be true myself, 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 free tribunals; and what I thus
promise will I stedfastly and firmly keep, so help me God and his Holy
Gospel."
He was further obliged to swear that he would ever, to the best of his
ability, enlarge the holy empire; and that he would undertake nothing
with unrighteous hand against the land and people of the stuhlherr.
The count then inquired of the officers of the court (the _Frohnboten_)
if the candidate had gone through all the formalities requisite to
reception, and when that officer had answered in the affirmative, the
count revealed to the aspirant the secrets of the tribunal, and
communicated to him the secret sign by which the initiated knew one
another. What this sign was is utterly unknown: some say that when they
met at table they used to turn the point of their knife to themselves,
and the haft away from them. Others take the letters S S G G, which were
found in an old MS. at Herford, to have been the sign, and interpret
them _Stock Stein, Gras Grein_. These are, however, the most arbitrary
conjectures, without a shadow of proof. The count then was bound to
enter the name of the new member in his register, and henceforth he was
one of the powerful body of the initiated.
Princes and nobles were anxious to have their chancellors and ministers,
corporate towns to have their magistrates, among the initiated. Many
princes sought to be themselves members of this formidable association,
and we are assured that in the fourteenth and fifteenth centuries (which
are the only ones of which we have any particular accounts) the number
of the initiated exceeded 100,000.
The duty of the initiated was to go through the country to serve
citations and to trace out and denounce evil-doers; or, if they caught
them in the fact, to execute instant justice upon them. They were also
the count's assessors when the tribunal 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 the
by-standers of the court. Of these there were frequently some hundreds
present.
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 was 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 behind 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 AEneas Sylvius, who wrote at the time
when the society had degenerated, assures us that no member 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_[121], 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 required that the
messengers should be freemen belonging to the county, and have all the
qualifications of the simple schoeppen. 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 cited[122].
[Footnote 121: _Frohnbote_ is interpreted a _Holy Messenger_, or a
_Servant of God_.]
[Footnote 122: When a person was admitted into the society he paid,
besides the fee to the count already mentioned, to each schoeppe who was
assisting there, and to each frohnbote, four livres Tournois.]
The count was to hold two kinds of courts, the one public, named the
Open or Public Court (_Offenbare Ding_), to which every freeman had
access; the other private, called the Secret Tribunal (_Heimliche
Acht_), at which no one who was not initiated could venture to appear.
The former court was held at stated periods, and at least three times in
each year. It was announced fourteen days previously by the messengers
(_Frohnboten_), and every householder in the county, whether initiated
or not, free or servile, was bound under a penalty of four heavy
shillings, to appear at it and declare on oath what crimes he knew to
have been committed in the county.
When the count held the Secret Court, the clergy, who had received the
tonsure and ordination, women and children, Jews and Heathens[123], and,
as it would appear, the higher nobility, were exempted from its
jurisdiction. The clergy were exempted, 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,
however, voluntarily subject themselves to the Fehm-gerichte 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 unworthiness. The higher nobility were
exempted (if such was really the case) in compliance with the maxim of
German law that each person should be judged by his peers, as it was
scarcely possible that in any county there could be found a count and
seven assessors of equal rank with accused persons of that class.
[Footnote 123: The natives of Prussia were still heathens at that time.]
In their original constitution the Fehm-gerichte, agreeably to the
derivation of the name from _Fem_, condemnation, were purely criminal
courts, and had no jurisdiction in civil matters. They took cognizance
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 accordingly find in
the laws of the Fehm-gerichte, sacrilege, robbery, rape, murder,
apostacy, treason, perjury, coining, &c., &c., enumerated; 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 _Fehmbar_, or within their jurisdiction.
But all exceptions were disregarded in cases of contumacy, or of a
person being taken in the actual commission of an offence. 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 offence became
_fehmbar_; every judge was then authorized 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 was hardly possible. Here it was
that the superior power of the Fehm-gerichte exhibited itself. Other
courts could outlaw as well as they, 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 to sue to
the emperor for protection. In cases where a person was caught
_flagranti delicto_, the Westphalian tribunals were competent to
proceed to instant punishment.
Those who derive their knowledge of the Fehm-gerichte from plays and
romances are apt to imagine that they were always held in subterranean
chambers, or in the deepest recesses of impenetrable forests, while
night, by pouring her deepest gloom over them, added to their awfulness
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
Heinberg, under the house of John Menkin. At Paderborn indeed it was
held in the town-house; there was also one held in the castle of
Wulften. But the situation most frequently selected for holding a court
was some place under the blue canopy of heaven, for the free German
still retained the predilection of his ancestors for open space and
expansion. Thus at Nordkirchen and Suedkirchen (_north 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 tribunal at Arensberg 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 find the courts denominated simply from the trees by
which they were held, such as the tribunal 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
documents. It is much more analogous to Germanic usage to infer that, as
the Public Court, and the German courts in general, were held in the
morning, soon after the break of day, such was also the rule with the
Secret Court.
When an affair was brought before a Fehm-court, the first point to be
determined was whether it was a matter of Fehm-jurisdiction. Should such
prove to be the case, the accused was summoned to appear and answer the
charge before the Public Court. All sorts of persons, Jews and Heathens
included, might be summoned before this court, at which the uninitiated
schoeppen also gave attendance, and which was as public as any court in
Germany. If the accused did not appear, or appeared and could not clear
himself, the affair 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, in cases of extreme contumacy,
transferred thither.
The Fehm-tribunals had three different 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 schoeppen, at least, present to
punish him. With respect to the first particular, the legal language of
Saxony gave great extent to the term _taken in the fact_. 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 theft, was a person who had the
key of any place in which stolen articles were found, unless he could
prove that they came there without his consent or knowledge. The
Fehm-law enumerated three tokens or proofs of guilt in these cases; the
Habende Hand (_Having Hand_), or having the proof in his hand; the
Blickende Schein (_looking appearance_), such as the wound in the body
of one who was slain; and the Gichtige Mund (_faltering mouth_), or
confession of the criminal. Still, under all these circumstances, it was
necessary that he should be taken immediately; for if he succeeded in
making his escape, and was caught again, as he was not this time taken
in the fact, he must be proceeded against before the tribunal with all
the requisite formalities.
The second condition was, 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, accusers,
witnesses, and executioners. We shall in the sequel describe their mode
of procedure. It is a matter of uncertainty whether the rule of trial by
peers was observed on these occasions: what is called the Arensberg
Reformation of the Fehm-law positively asserts, that, in case of a
person being taken _flagranti delicto_, birth formed 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 criminal had not been taken in
the fact, there remained two ways of proceeding against him, namely, the
_inquisitorial_ and the _accusatorial_ processes. It depended 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 been chosen,--which was usually done
when the criminal had been taken in the fact, but had contrived to
escape, or when he was a man whom common fame charged openly and
distinctly with a crime,--he was not cited to appear before the court
or vouchsafed a hearing. He was usually 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,
_forfehmed_[124], and his name was inscribed in the blood-book. A
sentence was immediately drawn out, in which all princes, lords, nobles,
towns, every person, in short, especially the initiated, were called
upon to lend their aid to justice. This sentence, of course, could
originally have extended only to Westphalia; but the Fehm-courts
gradually enlarged their claims; their pretensions were favoured 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.
[Footnote 124: In German _Verfehmt_. We have ventured to coin the word
in the text. The English for answers to the German _ver_; _vergessen_ is
_forget_; _verloren_ is _forlorn_.]
Unhappy now was he who was _forfehmed_; the whole body of the initiated,
that is 100,000 persons, were in pursuit of him. If those who met him
were sufficient 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 was _forfehmed_, to
help to take him. As soon as they had seized the criminal they proceeded
without a moment's delay to execution; they 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 regard to territorial jurisdiction. The halter
which they employed was, agreeably to the usage of the middle ages, a
_withy_; and they are said to have had so much practice, and to have
arrived at such expertness in this business, that the word _Fehmen_ at
last began to signify simply _to hang_, as _execution_ has come to do in
English. It is more probable, however, that this, or something very near
it, was the original signification of the word from which the tribunals
took their name. Should the malefactor resist, his captors were
authorised to knock him down and kill him. In this case they bound the
dead body to a tree, and stuck their knives beside it, to intimate that
he had not been slain by robbers, but had been executed in the name of
the emperor.
Were the person who was _forfehmed_ uninitiated, he had no means
whatever of knowing his danger till the halter was actually about his
neck; for the severe penalty which awaited any one who divulged the
secrets of the Fehm-courts was such as utterly to preclude the chance of
a friendly hint or warning to be on his guard. Should he, however, by
any casualty, such, for instance, as making his escape from those who
attempted to seize him, become aware of how he stood, he might, if he
thought he could clear himself, seek the protection and aid of the
Stuhlherr, or of the emperor.
If any one knowingly associated with or entertained a person who was
_forfehmed_, he became involved in his danger. It was necessary,
however, to prove that he had done so knowingly--a point which was to be
determined by the emperor, or by the judge of the district in which the
accused resided. This rule originally had extended only to Westphalia,
but the Fehm-judges afterwards assumed a right of punishing in any part
of the empire the person who entertained one who was _forfehmed_.
Nothing can appear more harsh and unjust than this mode of procedure to
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 Europe in general, and of Germany in particular, during the
middle ages, was such as almost to exceed our conception. Might it not
then be argued that we ought to 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 which his power, however great it might be,
would not avail to protect him; he knew not who were the initiated, or
at what moment he might fall into their hands; his very brother might be
the person who had denounced him; his intimate associates might be those
who would seize and execute him. So strongly was the necessity of such a
power felt in general, that 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 fame against them was satisfactory
to the majority of the town-council. Several counts also obtained
similar privileges, 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 having a numerous body of schoeppen at their devotion.
It is finally to be observed that it was only when the crimes were of
great magnitude, and the voice of 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. Here then
the inquisitorial process had its limit: if report was not sufficiently
strong and overpowering, and the matter was still dubious, the offender
was to be proceeded against accusatorially. If he was one of the
initiated, such was his undoubted right and privilege in all cases.
CHAPTER III.
Accusatorial process--Persons liable to it--Mode of citation--Mode
of procedure--Right of appeal.
As 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 before the Public
Court, and when 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 of the accuser; it was to be written on
good new parchment, without 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 different. The summonses varied according to
whether the accused was a free-count, a free-schoeppe, or one of the
ignorant and uninitiated, a community, a noth-schoeppe, or a mere
vagabond. In all cases they were to be served by schoeppen. They were to
have on them the name of the count, of the accuser, and of the accused,
the charge, and the place where the court was to be holden. The
stuhlherr was also to be previously informed of it.
For a good and legal service it was requisite that two schoeppen should
either serve the accused personally 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 within six weeks and
three days, he was again summoned by four persons. Six weeks was the
least term set for appearing to this summons, and it was requisite that
a piece of imperial coin should be given with it. Should he still
neglect appearing, he was summoned for the third and last time by six
schoeppen and a count, and the term set was six weeks and three days as
before.
If the accused was not merely initiated but also a count, he was treated
with corresponding respect. The first summons was served by seven
schoeppen, the second by fourteen and four counts, and the third by
twenty-one and six counts.
The uninitiated, whether bond or free, did not share in the preceding
advantages. The summons was served on themselves, or at their residence,
by a messenger, and only once. There is some doubt as to the period set
for their appearance, but it seems to have been in general the ordinary
one of six weeks and three days.
The summons of a town or community was usually addressed to all the male
inhabitants. In 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_ schoeppen.
The noth-schoeppe, 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 charge.