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, placing a piece of imperial money with
each. This was esteemed good and valid 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 from 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 audacious 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 messengers 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 schoeppen
employed were then to desire the watchman, 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 schoeppe was always waiting for him, who bound his eyes and led him to
where the court was sitting. This, 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[125]. If on this day the accused, or his attorney, appeared at
the appointed 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 circumstance 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 was _forfehmed_. The
court had however 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.
[Footnote 125: In German, _Dienstag_, probably _Dinstag_, i.e.
_Court-day_.]
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 service of God (that
is, pilgrimage), and the public service. 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 service, or that of his master, he
was to notify the same by letter sealed with his seal, or else by his
own oath 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 required 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; before 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 left 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 body, 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 assembly, his process
was a brief one. He was seized without any ceremony, his hands and feet
were tied together, and he was hung on the next tree. Should a
noth-schoeppe be caught in the assembly, a halter of oaken twigs was put
about his neck, and he was thrown for nine days into a dark dungeon, at
the end of which time he was brought to trial, and, if he failed in
clearing himself, he was proceeded with according to law, that is, was
hanged.
The business of the day commenced, as in German courts in general, by
the count asking of the messengers if it was the day and time for
holding a court under the royal authority. An affirmative answer being
given, the count then asked how many assessors should there be on the
tribunal, and how the seat should be filled. When these questions were
answered, he proclaimed the holding of the court.
Each party was permitted to bring with him as many as thirty friends to
act as witnesses and compurgators. Lest, however, they might attempt to
impede the course of justice, they were required to appear unarmed. Each
party had, moreover, the right of being represented by his attorney. The
person so employed must be initiated; he must also be the peer of the
party, and if he had been engaged on either side he could not, during
any stage of the action, be employed on the other, even with the
permission of the party which had just engaged him. When he presented
himself before the court, his credentials 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 parchment, without blot or erasure, and be sealed
by the seals of at least two frei-schoeppen.
The attorney of a prince of the empire appeared 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 attorneys,
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 proceedings 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 which 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-schoeppen 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 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 being permitted to let or hinder him.
But if he was one of the uninitiated, 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 accused.
The accuser could prevent the accused from clearing himself thus easily,
by offering himself and six compurgators to swear to the truth of his
charge. If the 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 him by bringing forward twenty to vouch for
his veracity.
If the accuser had convicted the accused, he forthwith prayed the count
to grant him a just sentence. The count never took on himself the office
of finding the verdict; he always directed one of the assessors to
perform it. If the assessor thought the matter too difficult for his
judgment, he averred on oath that such was the case, and the court then
gave the duty to another, who might free himself from the responsibility
in the same manner. Should none of the 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 assessors and the by-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 uncertain. When the verdict had been found the assessor appeared with
his colleagues before the tribunal, and delivered it to the count, who
then passed sentence. 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 instrument 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, his 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 sentence of outlawry, all his
goods then fell to the 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 his head out of the inclosure of the tribunal, the schoeppen 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 schoeppe 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 schoeppen were, as we 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
schoeppen who consulted about the verdict did not agree, or that the
witnesses did not correspond 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 sentence, 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
forbidden, 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 prosequenda_. 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 usually, 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
commissioners, 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 himself,
with the aid of some initiated schoeppen, 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 appeared, he might voluntarily and personally repair
to 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-schoeppen, 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
proceedings had been violated. Some other means shall presently be
noticed.
CHAPTER IV.
The General Chapter--Rights of the Emperor--Of his Lieutenant--Of
the Stuhlherrn, or Tribunal-Lords.
To complete the sketch of the Fehm-tribunals and their proceedings, we
must state the rights and powers of the general chapter and of the
emperor, his lieutenant, and the tribunal-lords.
The general chapter was a general assembly of the Westphalian
tribunal-lords, counts, and schoeppen, summoned once a-year by the
emperor or his lieutenant. Every count was bound by oath to appear at
it. It could only be holden in Westphalia, and almost exclusively at
Dortmund or Arensberg. No one could appear at it who was not initiated,
not even the emperor himself. The president was the emperor, if present
and initiated, otherwise the lieutenant or his substitute.
The business of the general chapter was to inquire into the conduct and
proceedings of the different Fehm-courts. The counts were therefore to
give an account of all their proceedings during the past year; to
furnish a list of the names of the schoeppen who had been admitted, as
well as of the suits which had been commenced, with the names of the
accusers, the accused, the _forfehmed_, &c. Such counts as had neglected
their duty were deposed by the general chapter.
The general chapter was, as we have above observed, a court of appeal
from all the Fehm-tribunals. In matters of great importance the decrees
of the lower courts were, to give them greater weight, confirmed by the
general chapter. It was finally at the general chapter that all
regulations, laws, and reformations, concerning the Fehm-law and courts,
were made.
The emperor, even when the imperial authority was at the lowest, was
regarded in Germany as the fountain of judicial authority. The right of
passing capital sentence in particular was considered to emanate either
mediately or immediately from him. The Fehm-courts were conspicuous for
their readiness to acknowledge him as the source of their authority, and
all their decrees were pronounced in his name.
As superior lord and judge of all the counts and tribunals, the emperor
had a right of inspection and reformation over them. He could summon and
preside in a general chapter; he might enter any court; and the
presiding count was obliged to give way and allow him to preside in his
stead. He had the power to make new schoeppen, provided he did so on
Westphalian soil. Every schoeppe was moreover bound to give a true answer
to the emperor when he asked whether such a one was _forfehmed_ or not,
and in what court. He could also depose disobedient counts, but only in
Westphalia.
The emperor could even withdraw a cause out of the hands of the
tribunals. The right of appeal to him has been already noticed; but,
besides this, he had a power of forbidding the count to proceed in the
cause when the accused offered himself to him _for honour and right_;
and it was at his own risk then that the count proceeded any further in
the business. The emperor could also grant a safe-conduct to any person
who might apply for it under apprehension of having been _forfehmed_,
which safe-conduct the schoeppen dared not violate. Even when a person
had been _forfehmed_, the emperor could save him by issuing his command
to stay execution of the sentence for a hundred years, six weeks, and a
day.
It is plain, that, to be able to exercise these rights, the emperor must
be himself _initiated_, for otherwise he could not, for instance, appear
where a court was sitting, make alterations in laws with which, if
_ignorant_, he must necessarily be unacquainted, or extend mercy when he
could not know who was _forfehmed_ or not. In the laws establishing the
rights of the emperor it was therefore always inserted, _provided he be
initiated_, and the acts of uninitiated emperors were by the Fehm-courts
frequently declared invalid. The emperor had, therefore, his choice of
setting a substitute over the Fehm-courts, or of being himself
initiated. The latter course was naturally preferred, and each emperor,
at his coronation at Aix-la-Chapelle, was initiated by the hereditary
Count of Dortmund. Though Aix-la-Chapelle was not in Westphalia, the law
sanctioned this departure from the general rule that frei-schoeppen
should only be made in that country.
The emperor's lieutenant, who was almost always the Archbishop of
Cologne, had the right of confirming such counts as were presented to
him by the Tribunal-lords, and of investing them with the powers of life
and death. He could also summon general chapters, and preside and
exercise the other imperial rights in them. He might decide, with the
aid of some schoeppen, in cases of appeal to him, without bringing the
affair before the general chapter; and he had the power of making
schoeppen at any tribunal in Westphalia, which proves that, like the
emperor, he had free access to them all. Hence it is clear that he also
must have been initiated.
The dignity and pre-eminence of the Archbishop of Cologne, when this
office had been conferred on him, caused a good deal of envy and
jealousy among the lords of Westphalia, who had been hitherto his
equals, and who considered themselves equally entitled to it with him.
They never let slip an occasion of showing their feelings, and they
always had their counts invested by the emperor, and not by the
archbishop; nay, there are not wanting instances of their having such
counts as he had invested confirmed and re-invested by the emperor.
There now remain only the Tribunal-Lords (_Stuhl-herrn_) to be
considered.
The Tribunal-lord was the lord of the district in which there was a
Fehm-tribunal. He might himself, if initiated, become the count of it,
having previously obtained the power of life and death from the emperor,
or his lieutenant; or, if he did not choose to do so, he might, as we
have already seen, present a count to be invested, for whose conduct he
was held responsible; and, if the count appointed by him misconducted
himself, the Stuhl-herr was liable to a forfeiture of his rights. He
was, in consequence, permitted to exercise a right of inspection over
the Fehm-courts in his territory; no schoeppe could be made, no cause
brought into the court, not even a summons issued, without his
approbation. There even lay a kind of appeal to him from the sentence of
the count; and he could also, like the emperor, withdraw certain persons
and causes from his jurisdiction. But as his power did not extend beyond
his own territory, the count might refer those causes in which he
wished, but was prohibited, to proceed, to the courts in other
territories; he might also, if he apprehended opposition from the
Tribunal-lord, require him (if initiated) to be present at the
proceedings.
The Tribunal-lord, if uninitiated, could, like the emperor in the same
case, exercise these powers only by initiated deputies.
The great advantage which resulted from the right of having
Fehm-tribunals induced the high lords, both spiritual and temporal, to
be very anxious to become possessed of this species of territorial
property, and in consequence nearly all the lords in Westphalia had
Fehm-tribunals. Even towns, such as Dortmund, Soest, Muenster, and
Osnabrueck, had these tribunals, either within their walls, or in their
districts, or their neighbourhood, for it would not have been good
policy in them to suffer this sort of _Status in Statu_, to be
independent of their authority.
CHAPTER V.
Fehm-courts at Celle--At Brunswick--Tribunal of the Knowing in the
Tyrol--The Castle of Baden--African Purrahs.
We have now gone through the constitution and modes of procedure of the
Fehm-tribunals of Westphalia, as far as the imperfect notices of them
which have reached the present age permit. It remains to trace their
history down to the last vestiges of them which appear. A matter of some
curiosity should, however, be previously touched on, namely, how far
they were peculiar to Westphalia, and what institutions resembling them
may be elsewhere found.
Fehm-tribunals were, in fact, as we have already observed, not peculiar
to Westphalia. In a MS. life of Duke Julius of Celle, by Francis
Algermann[126], of the year 1608, we read the following description of a
Fehm-court, which the author remembered to have seen holden at Celle in
his youth:--
[Footnote 126: Berck, p. 231, from Spittler's History of Hanover.]
"When the Fehm-law[127] was to be put in operation, all the inhabitants
of the district who were above twelve years of age were obliged to
appear, without fail, on a heath or some large open place, and sit down
on the ground. Some tables were then set in the middle of the assembly,
at which the prince, his councillors, and bailiffs, took their seats.
The Secret Judges then reported the delinquents and the offences; and
they went round with a white wand and smote the offenders on the legs.
Whoever then had a bad conscience, and knew himself to be guilty of a
capital offence, was permitted to stand up and to quit the country
within a day and a night. He might even wait till he got the second
blow. But if he was struck the third time, the executioner was at hand,
a pastor gave him the sacrament, and away with him to the nearest tree.
[Footnote 127: _Vimricht_, i.e. _Fehm-law_, the German word, of which
the author presently gives a childish etymology.]
"But if a person was struck but once or twice, that was a paternal
warning to him to amend his life thenceforward. Hence it was called _Jus
Veniae_, because there was grace in it, which has been corrupted and made
_Vim-richt_."
There were similar courts, we are told, at places named Woelpe and
Rotenwald. Here the custom was for the Secret Judges, when they knew of
any one having committed an offence which fell within the
Fehm-jurisdiction, to give him a private friendly warning. To this end
they set, during the night, a mark on his door, and at drinking-parties
they managed to have the can sent past him. If these warnings took no
effect the court was held.
According to an ancient law-book, the Fehm-court at Brunswick was thus
regulated and holden. Certain of the most prudent and respectable
citizens, named _Fehmenotes_, had the secret duty of watching the
conduct of their fellow-citizens and giving information of it to the
council. Had so many offences been committed that it seemed time to hold
a Fehm-court, a day was appointed for that purpose. Some members of the
council from the different districts of the town met at midnight in St.
Martin's churchyard, and then called all the council together. All the
gates and entrances of the town were closed; all corners and bridges,
and the boats both above and below the town, were guarded. The
Fehm-clerk was then directed to begin his office, and the Fehmenotes
were desired to give their informations to him to be put into legal form
if the time should prove sufficient.
At daybreak it was notified to the citizens that the council had
resolved that the Fehm-court should be holden on this day, and they were
directed to repair to the market-place as soon as the tocsin sounded.
When the bell had tolled three times all who had assembled accompanied
the council, through the gate of St. Peter, out of the town to what was
called the Fehm-ditch. Here they separated; the council took their
station on the space between the ditch and the town-gate, the citizens
stood at the other side of the ditch. The Fehmenotes now mingled
themselves among the townsmen, inquired after such offences as were not
yet come to their knowledge, and communicated whatever information they
obtained, and also their former discoveries (if they had not had time to
do so in the night) to the clerk, to be put by him into proper form and
laid before the council.
The clerk having delivered his protocol to the council, they examined it
and ascertained which of the offences contained in it were to be brought
before a Fehm-court, and which not; for matters under the value of four
shillings did not belong to it. The council then handed the protocol
back to the clerk, who went with it to the Fehm-court, which now took
its seat in presence of a deputation of the council.
Those on whom theft had been committed were first brought forward and
asked if they knew the thief. If they replied in the negative, they were
obliged to swear by the saints to the truth of their answer; if they
named an individual, and that it was the first charge against him, he
was permitted to clear himself by oath; but if there was a second charge
against him, his own oath was not sufficient, and he was obliged to
bring six compurgators to swear along with him. Should there be a third
charge, his only course was to clear himself by the ordeal. He was
forthwith to wash his hand in water, and to take in it a piece of
glowing-hot iron, which the beadles and executioners had always in
readiness on the left of the tribunal, and to carry it a distance of
nine feet. The Fehm-count, according to ancient custom, chose whom he
would to find the verdict. The council could dissolve the court whenever
they pleased. Such causes as had not come on, or were put off on account
of sickness, or any other just impediment, were, on such occasions,
noted and reserved for another session.
It is evident, however, that this municipal court, of which the chief
object was the punishment of theft, the grand offence of the middle
ages, though called a Fehm-court, was widely different from those of the
same name in Westphalia.
The Tribunal of the Knowing (_Gericht der Wissenden_), in Tyrol, has
also been erroneously supposed to be the same with the Westphalian
courts. The mode of procedure in this was for the accuser to lay his
finger on the head of the accused, and swear that he knew him to be an
infamous person, while six reputable people, laying their fingers on the
arm of the accuser, swore that they knew him to have sworn truly and
honestly. This was considered sufficient evidence against any person,
and the court proceeded to judgment on it.
The ideal Fehm-court beneath the castle of Baden must not be passed over
without notice, as it seems to be the model after which our popular
novelist described his Fehm-tribunal in Switzerland! A female writer in
Germany[128] informs us that beneath the castle of Baden the vaults
extend to a considerable distance in labyrinthine windings, and were in
former times appropriated to the secret mysteries of a Fehm-tribunal.
Those who were brought before this awful tribunal were not conducted
into the castle-vaults in the usual way; they were, lowered into the
gloomy abyss by a cord in a basket, and restored to the light, if so
fortunate as to be acquitted, in the same manner; so that they never
could, however inclined, discover where they had been. The ordinary
entrance led through a long dark passage, which was closed by a door of
a single stone as large as a tombstone. This door revolved on invisible
hinges, and fitted so exactly, that when it was shut the person who was
inside could not distinguish it from the adjoining stones, or tell where
it was that he had entered. It could only be opened on the outside by a
secret spring. Proceeding along this passage you reached the
torture-room, where you saw hooks in the wall, thumb-screws, and every
species of instruments of torture. A door on the left opened into a
recess, the place of the _Maiden's Kiss_. When any person who had been
condemned was led hither, a stone gave way under his feet, and he fell
into the arms of the Maiden, who, like the wife of Nabis, crushed him to
death in her arms, which were thick set with spikes. Proceeding on
farther, after passing through several doors, you came to the vault of
the Tribunal. This was a long spacious quadrangle hung round with black.
At the upper end was a niche in which were an altar and crucifix. In
this place the chief judge sat; his assessors had their seats on wooden
benches along the walls.
[Footnote 128: Friederika Brun. Episoden aus Reisen durch das Suedliche
Deutschland, &c.]
We need not to observe how totally different from the proceedings of a
genuine Fehm-tribunal is all this. That there are vaults under the
castle of Baden is certain, and the description above given is possibly
correct. But the Fehm-court which was held in them is the mere coinage
of the lady's brain, and utterly unlike any thing real, unless it be the
Holy Office, whose secret proceedings never could vie in justice or
humanity with those of the Westphalian Fehm-courts. It is, moreover, not
confirmed by any document, or even by the tradition of the place, and
would be undeserving of notice were it not for the reason assigned
above.
The similarity between the Fehm-courts and the Inquisition has been
often observed. In the secrecy of their proceedings, and the great
number of agents which they had at their devotion, they resemble each
other; but the Holy Office had nothing to correspond to the public and
repeated citations of the Fehm-courts, the fair trial given to the
accused, the leaning towards mercy of the judges, and the right of
appeal which was secured.
The most remarkable resemblance to the Fehm-tribunals is (or was) to be
found among the negroes on the west coast of Africa, as they are
described by a French traveller[129]. These are the Purrahs of the
Foollahs, who dwell between Sierra Leone river and Cape Monte.
[Footnote 129: Golberry, Voyage en Afrique, t. i. p. 114, and seq.]
There are five tribes of this people, who form a confederation, at the
head of which is a union of warriors, which is called a Purrah. Each
tribe has its own separate Purrah, and each Purrah has its chiefs and
its tribunal, which is, in a more restricted sense, also called a
Purrah. The general Purrah of the confederation is formed from the
Purrahs of the five tribes.
To be a member of the inferior Purrahs, a man must be thirty years of
age; no one under fifty can have a seat in the general Purrah. The
candidate for admission into an inferior Purrah has to undergo a most
severe course of probation, in which all the elements are employed to
try him. Before he is permitted to enter on this course, such of his
relatives as are already members are obliged to pledge themselves for
his fitness, and to swear to take his life if ever he should betray the
secrets of the society. Having passed through the ordeal, he is admitted
into the society and sworn to secrecy and obedience. If he is unmindful
of his oath, he becomes the child of death. When he least expects it a
warrior in disguise makes his appearance and says, "The great Purrah
sends thee death." Every one present departs; no one ventures to make
any opposition, and the victim falls.
The subordinate Purrahs punish all crimes committed within their
district, and take care that their sentences are duly executed. They
also settle disputes and quarrels between the leading families.
It is only on extraordinary occasions that the great Purrah meets. It
then decides on the punishment of traitors and those who had resisted
its decrees. Frequently too it has to interfere to put an end to wars
between the tribes. When it has met on this account it gives information
to the belligerents, directing them to abstain from hostilities, and
menacing death if a drop more of blood should be spilt. It then inquires
into the causes of the war, and condemns the tribe which is found to
have been the aggressor to a four days' plundering. The warriors to whom
the execution of this sentence is committed must, however, be selected
from a neutral district. They arm and disguise themselves, put
horrible-looking vizards on their faces, and with pitch-torches in their
hands set out by night from the place of assembly. Making no delay, they
reach the devoted district before the break of day, and in parties of
from forty to sixty men, they fall unexpectedly on the devoted tribe,
and, with fearful cries, making known the sentence of the great Purrah,
proceed to put it into execution. The booty is then divided: one half is
given to the injured tribe, the other falls to the great Purrah, who
bestow one half of their share on the warriors who executed their
sentence.
Even a single family, if its power should appear to be increasing so
fast as to put the society in fear for its independence, is condemned to
a plundering by the Purrah. It was thus, though under more specious
pretexts, that the Athenian democracy sought to reduce the power of
their great citizens by condemning them to build ships, give theatrical
exhibitions, and otherwise spend their fortunes.
Nothing can exceed the dread which the Purrah inspires. The people speak
of it with terror and awe, and look upon the members of it as enchanters
who are in compact with the devil. The Purrah itself is solicitous to
diffuse this notion as much as possible, esteeming it a good mean for
increasing its power and influence. The number of its members is
estimated at upwards of 6000, who recognise each other by certain words
and signs. Its laws and secrets are, notwithstanding the great number of
the members, most religiously concealed from the knowledge of the
uninitiated.
CHAPTER VI.
The Emperor Lewis the Bavarian--Charles IV.--Wenceslaus--Rupertian
Reformation--Encroachments of the Fehm-courts--Case of Nickel
Weller and the town of Goerlitz--Of the City of Dantzig--Of Hans
David and the Teutonic Knights--Other instances of the presumption
of the Free-counts--Citation of the Emperor Frederic III.--Case of
the Count of Teckenburg.
The history of the Fehm-gerichte, previous to the fifteenth century,
offers but few events to detain attention. The Emperor Lewis the
Bavarian appears to have exerted his authority on several occasions in
granting privileges in Westphalia according, as it is expressly stated,
to the Fehm-law. His successor, the luxurious Charles IV., acted with
the same caprice respecting the Fehm-tribunals as he did in every thing
else, granting privileges and revoking them just as it seemed to accord
with his interest at the moment. This monarch attempted also to extend
the Fehm-system beyond Westphalia, deeming it perhaps a good mean for
bringing all Germany under the authority of his patrimonial kingdom of
Bohemia. He therefore gave permission to the Bishop of Hildesheim to
erect two Free-tribunals out of Westphalia. On the representations of
the Archbishop of Cologne and the lords of Westphalia, however, he
afterwards abolished them.
Wenceslaus, the son of Charles, acted with his usual folly in the case
of the Fehm-tribunals; he is said, as he could keep nothing secret, to
have blabbed their private sign, and he took on him to make
frei-schoeppen, contrary to the law, out of Westphalia. These schoeppen of
the emperor's making did not, however, meet with much respect from the
genuine ones, as the answer given to the Emperor Rupert by the
Westphalian tribunals evinces. On his asking how they acted with regard
to such schoeppen, their reply was, "We ask them at what court they were
made schoeppen. Should it appear that they were made schoeppen at courts
which had no right so to do, we hang them, in case of their being met in
Westphalia, on the instant, without any mercy." Wenceslaus, little as he
cared about Germany in general, occasionally employed the Fehm-courts
for the furtherance of his plans, and, in the year 1389, he had Count
Henry of Wernengerode tried and hanged for treason by Westphalian
schoeppen. The reign of Wenceslaus is particularly distinguished by its
being the period in which the Archbishop of Cologne arrived at the
important office of lieutenant of the emperor over all the Westphalian
tribunals.
The reign of Rupert was, with respect to the Westphalian Fehm-courts,
chiefly remarkable by the reformation of them named from him. This
reformation, which is the earliest publicly-accredited source from which
a knowledge of the Fehm-law can be derived, was made in the year 1404.
It is a collection of decisions by which the rights and privileges of a
king of the Romans are ascertained with respect to these tribunals.
The Rupertian reformation, and the establishment of the office of
lieutenant in the person of the Archbishop of Cologne, which was
completed by either Rupert or his successor Sigismund, form together an
epoch in the history of the Fehm-gerichte. Hitherto Westphalia alone was
the scene of their operations, and their authority was of evident
advantage to the empire. Their power had now attained its zenith;
confidence in their strength led them to abuse it; and, during the
century which elapsed between the Rupertian reformation and the
establishment of the Perpetual Public Peace and the Imperial Chamber by
the Emperor Maximilian, we shall have to contemplate chiefly their
abuses and assumptions.
The right of citation was what was chiefly abused by the Free-courts.
Now that they were so formally acknowledged to act under the imperial
authority, they began to regard Westphalia as too narrow a theatre for
the display of their activity and their power. As imperial
commissioners, they maintained that their jurisdiction extended to every
place which acknowledged that of the emperor's, and there was hardly a
corner of Germany free from the visits of their messengers; nay, even
beyond the limits of the empire men trembled at their citations.
It was chiefly the towns which were harassed by these citations, which
were frequently issued at the instance of persons whom they had punished
or expelled for their misdeeds. Their power and consequence did not
protect even the greatest: we find, during the fifteenth century, some
of the principal cities of the empire summoned before the tribunals of
Westphalian counts. Thus in the records of those times we read of
citations served on Bremen, Luebeck, Augsburg, Nuremberg, Erfurt,
Goerlitz, and Dantzig. Even Prussia and Livonia, then belonging to the
order of the Teutonic knights, were annoyed by their interference.
One of the most remarkable cases which this period presents is that of
the uneasiness caused to the town of Goerlitz by means of one of its
inhabitants named Nickel Weller. This man, who was a Westphalian
schoeppe, was accused of having disinterred an unchristened child, and of
having made a candle of the bone of its arm, which he had filled with
the wax of an Easter-taper and with incense, and of having employed it
in a barn in presence of his mother, his wife, and an old peasant, for
magical purposes. As he could not deny the fact, he was, according to
the law of those times, liable to be hanged; but the high-bailiff of
Stein, and some other persons of consequence, interfering in his favour,
the magistrates contented themselves with expelling him from the town
and confiscating his goods. As it afterwards proved, they would have
acted more wisely had they condemned him to perpetual imprisonment.
Weller immediately repaired to Bresslau, and besought the council, the
Bishop of Waradein, and the imperial chancellor, to advocate his cause.
They acceded to his desire; but the magistrates of Goerlitz perfectly
justified their conduct. Weller, still indisposed to rest, applied to
the pope, Innocent VIII., asserting that he could not to any purpose
bring an accusation against the council of Goerlitz within the town of
the diocese of Meissen, and that he had no chance of justice there. The
pope forthwith named John de' Medici and Dr. Nicholas Tauchen of
Bresslau spiritual commissioners in this affair, and these desired the
high-bailiff of Stein to do his best that Weller should recover his
rights within the space of a month, on his taking his oath to the truth
of his statements, otherwise they should be obliged themselves to take
measures for that purpose.
From some unassigned cause, however, nothing came of this, and Weller
once more addressed himself to the pope, with whom the Bishop of Ostia
became his advocate. He was re-admitted into the bosom of the Church;
but the decree of the magistracy of Goerlitz still remained in force, and
the new commissioners appointed by the pope even confirmed it.
Finding that he had nothing to expect from papal interference, Weller
had at last recourse to the Fehm-tribunals, and on the 3d May, 1490,
John of Hulschede, count of the tribunal at Brackel, cited the
burgomasters, council, and all the lay inhabitants of Goerlitz above the
age of eighteen years, before his tribunal. This summons was served in
rather a remarkable manner, for it was found fastened to a twig on a
hedge, on a farm belonging to a man named Wenzel Emmerich, a little
distance from the town.
As by the Golden Bull of the Emperor Charles IV., and moreover by a
special privilege granted by Sigismund, Goerlitz was exempted from all
foreign jurisdiction, the magistracy informed Vladislaus, King of
Bohemia, of this citation, and implored his mediation. The Bohemian
monarch accordingly addressed himself to the tribunal at Brackel, but
George Hackenberg, who was at that time the free-count of that court,
Hulschede being dead, did not even deign to give him an answer.
Meanwhile the appointed period had elapsed without the people of Goerlitz
having appeared to the summons, and Weller, charging them with
disobedience and contempt of court, prayed that they might be condemned
in all the costs and penalties thereby incurred, and that he might be
himself permitted to proceed with his complaint. To this end he
estimated the losses and injuries which he had sustained at 500 Rhenish
florins, and made a declaration to that effect on oath, with two
joint-swearers. He was accordingly authorised by the court to indemnify
himself in any manner he could at the expense of the people of Goerlitz.
It was farther added that, if any one should impede Weller in the
prosecution of his rights, that person should _ipso facto_ fall under
the heavy displeasure of the empire and the pains and penalties of the
tribunal at Brackel, and be moreover obliged to pay all the costs of the
accuser.
On the 16th August of the same year, the count set a new peremptory term
for the people of Goerlitz, assuring them that, in case of disobedience,
"he should be obliged, though greatly against his inclination, to pass
the heaviest and most rigorous sentence on their persons, their lives,
and their honour." The citation was this time found on the floor of the
convent church. The council in consternation applied to the Archbishop
of Cologne and to the free-count himself, to be relieved from this
condition, but in vain; the count did not condescend to take any notice
of their application, and when they did not appear at the set time,
declared the town of Goerlitz outlawed for contumacy.
It appears that Weller had, for some cause or other, brought an
accusation against the city of Bresslau also; for in the published
decree of outlawry against Goerlitz it was included. By this act it was
prohibited to every person, under penalty of similar outlawry, to
harbour any inhabitant of either of these towns; to eat or drink, or
hold any intercourse with them, till they had reconciled themselves to
the Fehm-tribunals, and given satisfaction to the complainant. Weller
himself stuck up a copy of this decree on a market-day at Leipzig; but
it was instantly torn down by some of the people of Goerlitz who happened
to be there.
The two towns of Goerlitz and Bresslau held a consultation at Liegnitz,
to devise what measures it were best to adopt in order to relieve
themselves from this system of persecution. They resolved that they
would jointly and separately defend themselves and their proceedings by
a public declaration, which should be posted up in Goerlitz, Bresslau,
Leipzig, and other places. They also resolved to lay their griefs before
the Diet at Prague, and pray for its intercession with the Archbishop of
Cologne and the Landgraf of Hessen. They accordingly did so, and the
Diet assented to their desire; but their good offices were of no avail,
and the answer of the landgraf clearly showed, either that he had no
authority over his count, or that he was secretly pleased with what he
had done.
The indefatigable Weller now endeavoured to seize some of the people of
Bresslau and Goerlitz, in Hein and other places in Meissen. But they
frustrated his plans by obtaining a promise of protection and
safe-conduct from the Duke George. Weller, however, did not desist, and
when Duke Albert came from the Netherlands to Meissen, he sought and
obtained his protection. But here again he was foiled; for, when the
high-bailiff and council of Goerlitz had informed that prince of the real
state of the case, he withdrew his countenance from him. Wearied out by
this ceaseless teasing, the towns applied, through the king of Bohemia,
to the Emperor Frederic III. for a mandate to all the subjects of the
empire, and an inhibition to the tribunal at Brackel and all the
free-counts and schoeppen. These, when obtained, they took care to have
secretly served on the council of Dortmund and the free-count of
Brackel. By these means they appear to have put an end to their
annoyances for the remainder of Weller's life. But, in the year 1502,
his son and his son-in-law revived his claims on Goerlitz. Count Ernest
of Hohenstein interceded for them; but the council adhered firmly to
their previous resolution, and declared that it was only to their own or
to higher tribunals that they must look for relief. The matter then lay
over for ten years, when it was again stirred by one Guy of Taubenheim,
and was eventually settled by an amicable arrangement.
As we have said, the Fehm-tribunals extended their claims of
jurisdiction even to the Baltic. We find that a citizen of the town of
Dantzig, named Hans Holloger, who was a free schoeppe, was cited to
appear before the tribunal of Elleringhausen, under the hawthorn,
"because he had spoken what he ought not to have spoken about the Secret
Tribunal." This might seem just enough, as he belonged to the society;
but the town-council were commanded, under a penalty of fifty pounds of
fine gold, to cast the accused into prison till he had given security
for standing his trial.
Even the powerful order of the Teutonic Knights, who were the masters of
Prussia and Livonia, did not escape being annoyed by the Fehm-tribunals.
How little their power availed against that formidable jurisdiction is
evinced by the answer made by the Grand Master to the towns which sued
to him for protection. "Beloved liegemen! you have besought us to
protect you therefrom; we would cheerfully do it knew we but ways and
means thereto." And when he wrote to Mangolt, the count of the tribunal
at Freyenhagen, warning him against summoning before him the subjects of
the order, the latter haughtily replied, "You have your rights from the
empire, and I have power to judge over all who hold of the empire."
The following very curious case occurred in the first half of the
fifteenth century:--
A shopkeeper at Liebstadt died very much indebted to the two officers of
the Teutonic order, whose business it was to keep the small towns in
Prussia supplied with mercantile goods, and they accordingly seized on
the effects which he had left behind him. These, however, were not
sufficient to satisfy even the demands of one of them, much less of
both, and they had made up their minds to rest content with the loss,
when, to their surprise, Hans David, the son of the deceased, came
forward with an account against the order of such amount, that, as it
was observed, if all the houses in the town were sold, and all the
townsmen taxed to the utmost, the produce would not discharge the
one-half of it. He however produced a document purporting to be a bond
of the order. This instrument bore all the marks of falsification; it
was full of erasures and insertions; among the witnesses to it, some
were set down as priors who were only simple brethren of the order;
there were the names of others who had never seen it; it was asserted to
have been attested and verified by the tribunal at Passnar, but in the
records of that court there were not the slightest traces of it; the
seal of the Grand Master, which was appended to every document of any
importance, was wanting. Of course payment was resisted, but Hans David
was told to pursue his claim, if he pleased, before the emperor and the
pope, whom the order recognised as their superiors.
As Hans David was under the protection of the king of Poland, he had
recourse to that prince; but he declined interfering any farther than to
apply for a safe-conduct for him that he might apply for a new inquiry.
The Grand Master, on application being made to him, swore on his honour
that he owed to the complainant nothing, and that the bond was a
forgery; he moreover promised to answer the charge in any fit place that
the complainant might select; nay, even in Prussia, and he granted him a
safe-conduct as before.
It is not known what course Hans David now adopted; but nine years
afterwards (1441) we find him addressing himself to the Free-tribunal at
Freyenhagen, whose count, the notorious Mangolt, forthwith issued his
citations, "because, as he expressed himself, the order judges with the
sword and gentle murder and burning." The Grand Master, indignant at
this piece of arrogance, immediately brought the matter before the
assembly of the free-counts at Coblentz, who declared the proceedings
null, and Mangolt liable to punishment, as the knights were spiritual
persons. He moreover applied to the emperor, who, to gratify him, issued
a mandate, addressed to all princes of the empire, declaring the act of
Mangolt to be a piece of iniquity, and null and void.
Hans David was now cast into prison at Cologne, and, notwithstanding a
prohibition of the Free-tribunal, was detained there for two years.
Existing documents attest (though the fact is inexplicable) that the
emperor directed the Archbishop of Cologne and the Margraf of Baden to
examine anew into the affair, and to send the acts into the imperial
chancery, and, finally, to set the complainant free on his oath, or on
his giving bail to appear at Nuremberg. As this proceeding can only be
ascribed to the influence of the Secret Tribunals, bent on annoying the
order, it serves to show what their power and consequence must have been
at that time.
Two years afterwards it was clearly proved at Vienna that the bond had
been forged, at the desire of Hans David, by a scholar of Elbingen,
named Rothofe. As the case against the former was now so plain, it might
be supposed that he would be punished at once. Instead of that, the
emperor referred the parties to the pope, as Hans David had struck a
prior of the order, and this last was not content with the satisfaction
accorded by the emperor.
The cause of the order was triumphant in Rome also, yet still Hans David
found means to keep off the execution of the sentence already passed on
him at Vienna. It was not till after the death of the then Grand Master
that final judgment was formally delivered by Cardinal Jossi, and Hans
David, his comrade Paul Frankleuen, and the Count Mangolt, were
condemned to perpetual silence, and to payment of the sum of 6,000
Rhenish florins to the order, and, in case of disobedience, they were
declared to be outlawed. All this, however, did not yet avail, and two
years afterwards Jossi was obliged to apply to the emperor for the aid
of the temporal arm for the execution of the sentence. The chaplain of
the order at Vienna also found that Hans David had still the art to
deceive many and gain them over to his cause, and he accordingly took
care to have the whole account of his conduct posted up on the
church-doors.
Still the unwearied Hans David did not rest. He now went to the
Free-tribunal at Waldeck, and had the art to deceive the count by his
false representations. He assured him that the order had offered him no
less than 15,000 florins and an annuity, if he would let his action
drop; that they would have been extremely well content if he had escaped
out of prison at Cologne, but that he preferred justice and truth to
liberty. The order however succeeded here again in detecting and
exposing his arts, and the count honestly confessed that he had been
deceived by him. He cast him off forthwith, and Hans David, ceasing to
annoy the order, devoted himself to astrology and conjuring for the rest
of his days[130].
[Footnote 130: The following is one of his predictions, delivered by
him, under the name of Master Von Dolete, in the year 1457: "In the
ensuing month, September, the sun will appear like a black dragon; cruel
winds will blow, the sea will roar, and men will be knocked to pieces by
the wind. The sun will then be turned to blood; that betokeneth war in
the East and West. A mighty emperor will die; the earth will quake, and
few men will remain alive. Wherefore secure your houses and chambers;
lay up provisions for thirty days in caverns," &c., &c. The arts of
knaves and the language of impostors are the same in all ages and
countries.]
He had, however, caused the order abundance of uneasiness and expense.
Existing documents prove that this affair cost them no less than upwards
of 1580 ducats, and 7000 florins, which must be in a great measure
ascribed to the secret machinations of the Free-tribunals, anxious to
depress the Teutonic Knights, who stood in their way.
In 1410 the Wild and Rhein Graf was summoned before the tribunal at
Nordernau, and, in 1454, the Duke of Saxony before that at Limburg. The
Elector-Palatine found it difficult, in 1448, to defend himself against
a sentence passed on him by one of the Fehm-courts. Duke Henry of
Bavaria found it necessary, on the following occasion, actually to
become a frei-schoeppe in order to save himself. One Gaspar, of
Torringen, had accused him before the tribunal of Waldeck of "having
taken from him his hereditary office of Chief Huntsman; of having seized
and beaten his huntsmen and servants, taken his hounds, battered down
his castle of Torringen, and taken from his wife her property and
jewels, in despite of God, honour, and ancient right." The free-count
forthwith cited the duke, who applied to the emperor Sigismund, and
procured an inhibition to the count. The duke found it necessary,
notwithstanding, to appear before the court; but he adopted the
expedient of getting himself made a frei-schoeppe, and then, probably in
consequence of his rank and influence, procured a sentence to be passed
in accordance with his wishes. Gaspar, who was probably an injured man,
appealed to the emperor, who referred the matter to the Archbishop of
Cologne, and we are not informed how it ended.
But the audacity of the free-counts went so far as even to cite the head
of the empire himself before their tribunals. The imperial chancery
having, for just and good cause, declared several free-counts and their
Tribunal-lord, Walrabe of Waldeck, to be outlawed, three free-counts
had the hardihood, in 1470, to cite the emperor Frederic III., with his
chancellor, the Bishop of Passau, and the assessors of the
chancery-court, to appear before the free-tribunal between the gates of
Wuennenberg in the diocese of Paderborn, "there to defend his person and
highest honour under penalty of being held to be a disobedient emperor;"
and on his not appearing, they had the impudence to cite him again,
declaring that, if he did not appear, justice should take its course.
Feeble, however, as was the character of the emperor, he did not give
way to such assumptions.
Even robbery and spoliation could find a defence with the Fehm-courts.
Towards the end of the thirteenth century a count of Teckenburg
plundered and ravaged the diocese of Muenster. The bishop assembled his
own people and called on his allies to aid him, and they took two
castles belonging to the count and pushed him to extremity. To extricate
himself he accused the bishop, and all those who were with him, before
his Fehm-court, and though there were among them the Bishop of
Paderborn, three counts, and several knights, the free-count had the
boldness to cite them all to appear and defend their honour. The affair
was eventually amicably arranged and the citation recalled.
These instances may suffice to show how far the Fehm-tribunals had
departed from the original object of their institution, and how corrupt
and iniquitous they were become.
CHAPTER VII.
Cause of the degeneracy of the Fehm-courts--Attempts at
reformation--Causes of their high reputation--Case of the Duke of
Wuertemberg--Of Kerstian Kerkerink--Causes of the decline of the
Fehm-jurisdiction.
The chief cause of the degeneracy of the Fehm-courts was the admission
of improper persons into the society. Originally, as we have seen, no
man was admitted to become a schoeppe without producing satisfactory
evidence as to the correctness of his character; but now, in the case of
either count or schoeppe, a sufficient sum of money availed to supersede
inquiry, and the consequence was that men of the most disgraceful
characters frequently presided at the tribunals and wielded the
formidable powers of the society. A writer in the reign of Sigismund
says, "that those who had gotten authority to hang men were hardly
deserving enough to keep pigs; that they were themselves well worthy of
the gallows if one cast a glance over their course of life; that they
left not unobserved the mote in their brother's eye, but overlooked the
beam in their own, &c." And it required no small courage in the writer
thus to express himself; for, according to his own testimony, people
then hardly ventured even to speak of the Secret Tribunals, so great was
the awe in which they were held.
The consequence was that justice was not to be had at any tribunal which
was presided over by corrupt judges, as they selected assessors, and
even by-standers, of the same character with themselves, and whatever
verdict they pleased was found. The tribunal-lord generally winked at
their proceedings, while the right of appeal to the emperor was treated
with little respect; for these monarchs had generally affairs of more
immediate importance to themselves to occupy their attention. The right
of exemption was also trampled on; sovereign princes were, as we have
seen, cited before the tribunals; so also were the Jews. Purely civil
matters were now maintained to belong to the Fehm-jurisdiction, and
parties in such cases were cited before the tribunals, and _forfehmed_
in case of disobedience. In short, the Fehm-jurisdiction was now become
a positive evil instead of being, as heretofore, a benefit to the
country.
Various attempts were doubtless made to reform the Fehm-law and
tribunals, such as the Arensberg reformation, the Osnaburgh regulation,
and others, but to little purpose. The system, in fact, was at variance
with the spirit which was now beginning to prevail, and could not be
brought to accord with it.
Before we proceed to the decline of the society, we will pause a moment
to consider the causes of the great reputation and influence which it
obtained and exercised during the period in which it flourished.
The first and chief cause was the advantage which it was found to be of
for the maintenance of social order and tranquillity. In the very worst
and most turbulent times a portion of mankind will always be found
desirous of peace and justice, even independently of any private
interest; another portion, feeling themselves the victims of oppression,
will gladly catch at any hope of protection; even the mighty and the
oppressive themselves will at times view with satisfaction any
institution which may avail to shield them against power superior to
their own, or which they conceive may be made the instrument of
extending and strengthening their consequence. The Fehm-jurisdiction
was calculated to suit all these orders of persons. The fourteenth and
fifteenth centuries were the most anarchic periods of Germany; the
imperial power was feeble to control; and the characters of most of the
emperors were such as to render still more unavailing the little
authority which, as heads of the empire, they possessed. Sensible of
their weakness, these monarchs generally favoured the Fehm-tribunals,
which so freely, and even ostentatiously, recognised the imperial
superiority, as long as it did not seek to control them or impede them
in their proceedings. The knowledge which, if initiated, they could
derive of the crimes and misdemeanors committed in the empire, and the
power of directing the arms of the society against evil-doers, were also
of no small importance, and they gradually became of opinion that their
own existence was involved in that of the Fehm-courts. The nobles of
Westphalia, in like manner, found their advantage in belonging to the
society, and the office of tribunal-lord was, as we have seen, one of
influence and emolument.
But it was the more helpless and oppressed classes of society, more
especially the unhappy serfs, that most rejoiced in the existence of the
Fehm-tribunals; for there only could they hope to meet with sure redress
when aggrieved, and frequently was a cause, when other courts had been
appealed to in vain, brought before the Secret Tribunal, which judged
without respect of persons. The accuser had farther not to fear the
vengeance of the evil-doer, or his friends and dependents; for his name
was kept a profound secret if the proofs which he could furnish were
sufficient to justify the inquisitorial process already described, and
thus the robber-noble, or the feudal tyrant, often met his merited
punishment at a time when he perhaps least dreaded it, and when he held
his victim, whose cries to justice had brought it on him, in the
greatest contempt; for, like the Nemesis, or the "gloom-roaming" Erinnys
of antiquity, the retributive justice of the Fehm-tribunals moved to
vengeance with stealthy pace, and caught its victim in the midst of his
security.
A second cause was the opinion of these courts having been instituted by
Charles the Great, a monarch whose memory was held in such high
estimation and such just veneration during the middle ages. Emperors
thought themselves bound to treat with respect the institution of him
from whom they derived their authority; and the clergy themselves,
exempt from its jurisdiction, were disposed to view with favour an
institution established by the monarch to whom the Church was so deeply
indebted, and of whose objects the punishment of heretics was one of the
most prominent.
A third, and not the least important cause, was the excellent
organization of the society, which enabled it to give such effect to its
decrees, and to which nothing in those times presented any parallel. The
veil of secrecy which enveloped all its proceedings, and the number of
agents ready to execute its mandates, inspired awe; the strict inquiry
which was known to be made into the character of a man before he was
admitted into it gained it respect. Its sentences were, though the
proofs were unknown, believed to have emanated from justice; and bad men
trembled, and good men rejoiced, as they beheld the body of a criminal
suspended from a tree, and the schoeppe's knife stuck beside it to
intimate by whom he had been judged and condemned.
The reign of the Emperor Maximilian was a period of great reform in
Germany, and his establishment of the Perpetual Public Peace, and of
the Imperial Chamber, joined with other measures, tended considerably to
alter and improve the condition of the empire. The Fehm-tribunals
should, as a matter of prudence, have endeavoured to accommodate
themselves to the new order of things; but this is a part of wisdom of
which societies and corporate bodies are rarely found capable; and,
instead of relaxing in their pretensions, they even sought to extend
them farther than before. Under their usual pretext--the denial of
justice--they extended their citations to persons and places over which
they had no jurisdiction, and thereby provoked the enmity and excited
the active hostility of cities and powerful territorial lords.
The most remarkable cases which this period presents of the perversion
of the rights and powers of the Fehm-tribunals are the two following:--
Duke Ulrich of Wuertemberg lived unhappily with his duchess Sabina. There
was at his court a young nobleman named Hans Hutten, a member of an
honourable and powerful family, to whose wife the duke was more
particular in his attentions than could be agreeable to a husband. The
duchess, on her side, testified a particular esteem for Hans Hutten, and
the intimacy between them was such as the duke could not forgive. Hutten
was either so vain or so inconsiderate as to wear publicly on his finger
a valuable ring which had been given to him by the duchess. This filled
up the measure of the jealousy and rage of the duke, and one day, at a
hunting-party in the wood of Bebling, he contrived to draw Hutten away
from the rest of the train, and, taking him at unawares, ran him through
with his sword; he then took off his girdle, and with it suspended him
from one of the oak-trees in the wood. When the murder was discovered he
did not deny it, but asserted that he was a free schoeppe, and had
performed the deed in obedience to a mandate of the Secret Tribunal, to
which he was bound to yield obedience. This tale, however, did not
satisfy the family of Hutten, and they were as little content with the
proposal made by the murderer of giving them satisfaction before a
Westphalian tribunal. They loudly appealed to the emperor for justice,
and the masculine eloquence of Ulrich von Hutten interested the public
so strongly in their favour, that the emperor found himself obliged to
issue a sentence of outlawry against the Duke of Wuertemberg. At length,
through the mediation of Cardinal Lang, an accommodation both with the
Hutten family and the duchess was effected; but the enmity of the former
was not appeased, and they some time afterwards lent their aid to effect
the deposition of the duke and the confiscation of his property.
It would seem that the Fehm-tribunals would have justified the
assassination committed by the duke, at least that all confidence in
their justice was now gone; and, at this period, even those writers who
are most lavish in their praises of the schoeppen of the olden time can
find no language sufficiently strong to describe the iniquity of those
of their own days. It was now become a common saying that the course of
a Fehm-court was first to hang the accused and then to examine into the
charges against him. By a solemn recess of the Diet at Triers, in 1512,
it was declared "that by the Westphalian tribunals many an honest man
had lost his honour, body, life, and property;" and the Archbishop of
Cologne, who must have known them well, shortly afterwards asserted,
among other charges, in a capitulation which he issued, that "by very
many they were shunned and regarded as seminaries of villains."
The second case to which we alluded affords a still stronger proof of
their degeneracy.
A man named Kerstian Kerkerink, who lived near the town of Muenster, was
accused, and probably with truth, of having committed repeated acts of
adultery. The Free-tribunal of Muenster determined to take cognizance of
the affair, and they sent and had him taken out of his bed in the dead
of the night. In order to prevent his making any noise and resistance,
the persons who were employed assured him that he was to be brought
before the tribunal of a respectable councillor of the city of Muenster,
and prevailed on him to put on his best clothes. They took him to a
place named Beckman's-bush, where they kept him concealed while one of
them conveyed intelligence of their success to the town-council.
At break of day the tribunal-lords, free-count, and schoeppen, taking
with them a monk and a common hangman, proceeded to Beckman's-bush, and
had the prisoner summoned before them. When he appeared he prayed to be
allowed to have an advocate; but this request was refused, and the court
proceeded forthwith to pass sentence of death. The unfortunate man now
implored for the delay of but one single day to settle his affairs and
make his peace with God; but this request also was strongly refused, and
it was signified to him that he must die forthwith, and that if he
wished he might make his confession, to which end a confessor had been
brought to the place. When the unhappy wretch sued once more for favour,
it was replied to him that he should find favour and be beheaded, not
hung. The monk was then called forward, to hear his confession; when
that was over the executioner (who had previously been sworn never to
reveal what he saw) advanced and struck off the head of the delinquent.
Meantime, information of what was going on had reached the town, and old
and young came forth to witness the last act of the tragedy, or perhaps
to interfere in favour of Kerkerink. But this had been foreseen and
provided against; officers were set to watch all the approaches from the
town till all was over, and when the people arrived they found nothing
but the lifeless body of Kerkerink, which was placed in a coffin and
buried in a neighbouring churchyard.
The bishop and chapter of Muenster expressed great indignation at this
irregular proceeding and encroachment on their rights, and it served to
augment the general aversion to the Fehm-courts.
Our readers will at once perceive how much the proceedings in this case,
which occurred in the year 1580, differed from those of former times.
Then the accused was formally summoned, and he was allowed to have an
advocate; here he was seized without knowing for what, and was hardly
granted even the formality of a trial. Then the people who came, even
accidentally, into the vicinity of a Fehm-court, would cross themselves
and hasten away from the place, happy to escape with their lives: now
they rush without apprehension to the spot where it was sitting, and the
members of it fly at their approach. Finally, in severity as well as
justice, the advantage was on the side of the old courts. The criminal
suffered by the halter; we hear of no father confessor being present to
console his last moments, and his body, instead of being deposited in
consecrated earth, was left to be torn by the wild beasts and ravenous
birds. The times were evidently altered!
[Illustration: Seal of the Secret Tribunals.]
The Fehm-tribunals were never formally abolished; but the excellent
civil institutions of the Emperors Maximilian and Charles V., the
consequent decrease of the turbulent and anarchic spirit, the
introduction of the Roman law, the spread of the Protestant religion,
and many other events of those times, conspired to give men an aversion
for what now appeared to be a barbarous jurisdiction and only suited to
such times as it was hoped and believed never could return. Some of the
courts were abolished; exemptions and privileges against them were
multiplied; they were prohibited all summary proceedings; their power
gradually sank into insignificance; and, though up to the present
century a shadow of them remained in some parts of Westphalia, they have
long been only a subject of antiquarian curiosity as one of the most
striking phenomena of the middle ages. They were only suited to a
particular state of society: while that existed they were a benefit to
the world; when it was gone they remained at variance with the state
which succeeded, became pernicious, were hated and despised, lost all
their influence and reputation, shared the fate of every thing human,
whose character is instability and decay, and have left only their
memorial behind them.
* * * * *
It is an important advance in civilization, and a great social gain, to
have got rid, for all public purposes, of Secret Societies--both of
their existence and of their use; for, that, like most of the other
obsolete forms into which the arrangements of society have at one time
or other resolved themselves, some of these mysterious and exclusive
institutions, whether for preserving knowledge or dispensing justice,
served, each in its day, purposes of the highest utility, which
apparently could not have been accomplished by any other existing or
available contrivance, has been sufficiently shown by the expositions
that have been given, in the preceding pages, of the mechanism and
working of certain of the most remarkable of their number. But it has
been made at least equally evident that the evils attendant upon their
operation, and inherent in their nature, were also very great, and that,
considered even as the suitable remedies for a most disordered condition
of human affairs, they were at best only not quite so bad as the
disease. They were institutions for preserving knowledge, not by
promoting, but by preventing that diffusion of it which, after all, both
gives to it its chief value, and, in a natural state of things, most
effectually ensures its purification, as well as its increase; and for
executing justice, by trampling under foot the rights alike of the
wrong-doer and of his victim. Mankind may be said to have stepped out of
night into day, in having thrown off the burden and bondage of this form
of the social system, and having attained to the power of pursuing
knowledge in the spirit of knowledge, and justice in the spirit of
justice. We have now escaped from that state of confusion and conflict
in which one man's gain was necessarily another man's loss, and are
fairly on our way towards that opposite state in which, in everything,
as far as the constitution of this world will permit, the gain of one
shall be the gain of all. This latter, to whatever degree it may be
actually attainable, is the proper hope and goal of all human
civilization.
THE END.
London: Printed by W. CLOWKS and SONS, Stamford Street.
* * * * *
Transcriber's Note: Variations in spelling, hyphens, and accents left as
printed.