the emperors bestowed on the archbishops of Cologne, as dukes of
Westphalia and lieutenants of the Emperor, the right of investiture of
all free grafs and supervision of them all over Westphalia. A chapter of
free grafs was held yearly at Arnsberg, and hence the Arnsberg tribunal
obtained the first rank.
As the free grafs held their investiture from the king, they looked on
themselves as king’s officers, and little by little went on extending
their jurisdiction over the whole empire—a design favored by the
confusion reigning everywhere, and even approved by the emperors
themselves. At last the free grafs began to think that they were higher
than the emperor, and had no need of his meddling: this arrogance was at
its height in the reign of Sigmund, and it was still to be seen under
Frederic VII.; in fact, Frederic, for having taken steps to punish some
insubordinate free grafs, was summoned by free grafs to stand trial.
Some of the emperors did, indeed, set up free graf tribunals outside the
limits of Westphalia; but these never prospered. In the 15th century it
was an axiom that such courts could exist only in Westphalia, or, as the
saying was, “on red earth,” a phrase that does not occur prior to 1490,
and the sense of which is not quite clear; for neither is the soil of
all Westphalia red, nor is red soil confined to Westphalia: and the same
criticism may be made if “red earth” be taken for “blood-stained earth.”
2. THE SECRET TRIBUNAL.
The early “free courts” were in a certain sense “private” courts,
inasmuch as they were not open to all like the courts of the gaugrafs
(or judges of districts). The associate judges (Freischoeffen) were
called “wissende” (wisemen, knowing ones), which, in old times, meant
“judges.” The “private” tribunal of the Feme became by degrees a
“secret” tribunal about the middle of the 14th century, as the free
grafs became more conscious of their ambitious aims. The Schoeffen were
now required to bind themselves by oath to observe secrecy: the one who
proved false to his oath was first to have his tongue plucked out, and
then he was to be hanged, either three or seven feet higher than a
thief. The penalty was exacted very rarely, and probably never the first
item of it. The obligation of secrecy extended over all the proceedings
of the secret courts, even their letters and summonses. But the most
important secret was the countersign, by means of which the initiated
recognized each other. This was made up of four words (taken from the
oath), Stock, Stein, Gras, Grein; and as the words were pronounced one
laid his right hand on the others’ left shoulder. Poetry and romance
have made the Feme courts sit in subterranean chambers, at night, the
faces of the judges masked. The fact is that the tribunals of the Feme
were set up at the ancient seats of the free tribunals, and of such
places there were in Westphalia more than a hundred; and the trials were
always held in the open air, in broad daylight. Whether in certain cases
they were also public, so that any one might be present, is not known.
In all cases where testimony was taken the proceedings were secret;
whoever willingly or unwillingly was present unbidden at the secret
deliberations was straightway hanged from the nearest tree.
Very remarkable was the universal recognition throughout Germany of the
power of the Femgerichte. In 1387 the most distinguished people of
Cologne were “wissende”; about 1420 the Rhineland was full of wissende
belonging to every grade in society; and soon after the same might be
said of Bavaria, Tyrol, Switzerland, Suabia, Franconia, Saxony, Prussia.
Every manor lord and every free city needed the advice of wissende.
Princes and cities had their judges admitted as schoeffen; archbishops
and princes, even the Emperor Sigmund, were initiated: in the middle of
the 15th century there must have been more than 100,000 freischoeffen in
the empire. To be initiated became a craze, a fad; the native
Westphalians were amazed at the folly of their southern and eastern
countrymen.
And the long arm of the Femgericht jurisdiction reached as far as the
host of wissende: the localities in which the activity of the secret
tribunals was manifested were scattered all over the empire; in fact,
the proceedings of these courts which affected Westphalia itself became
a very small fraction of the whole.
But with the spread of the Feme jurisdiction arose opposition to the
same. There were seen faint beginnings of opposition even in the early
part of the 14th century, when Bremen decided not to allow members of
the Feme courts to reside within its jurisdiction; toward the close of
that century other cities took more effective measures, and in the 15th
were even formed leagues of cities for self-defense against the
encroachments of the Feme. Brunswick appealed to the Pope and the
Emperor, and Hildesheim and Erfurt to the Council of Basel. In the
middle of the 15th century several cities, especially in Southern
Germany and in Holland, were freed from the jurisdiction of the secret
courts by the supreme ecclesiastical and civil authorities. Then the
dukes of Bavaria and of Saxony forbade their subjects laying complaints
in the Westphalian courts, and some cities punished that offense with
death, imprisonment, or banishment.
A Feme court consisted of a free graf and at least seven schoeffen. The
graf was required to be a freeborn Westphalian of stainless reputation,
whatever his station in life, for peasants were often chosen to be
grafs. The schoeffen also had to be freemen born, and if not of
Westphalian birth, were required to present proofs of their fitness.
There was a fee for admission to the Feme. As time went on the
examination of applicants became less and less strict, and often very
questionable characters, even serfs and men accused of crimes, were
admitted: such admissions were illegal, and the men chosen under such
circumstances were called notschoeffen (makeshift schoeffen).
The free graf sat at a judgment-board, on which lay a naked sword and a
rope as symbols of avenging justice, and the schoeffen took oath on
these instruments. Each free graf and each schoeffe of a given court was
required not only to be present at a trial, but to take part in
pronouncing sentence. When the trial was one of special importance
several hundred schoeffen would be in attendance.
The Femgerichte had their special codes and statutes, which were from
time to time amended. In these the competence of the courts was defined,
and this had to do with matters purely criminal, at least so far as the
trials were held in secret. The crimes of which the Femgerichte took
cognizance—vemewrogige punkte (points for femic animadversion)—were,
according to the list drawn up at Dortmund in 1430, as follows: 1,
robbery and acts of violence against ecclesiastics or churches; 2,
larceny; 3, robbery of a woman in childbed or of a dying person; 4,
plundering the dead; 5, arson and murder; 6, treachery; 7, betrayal of
the Feme; 8, rape; 9, forgery of money or of title to property; 10,
robbery on the imperial highway; 11, perjury and perfidy; 12, refusal to
appear in court on summons. Apostasy from the Christian faith was put at
the head of the list in an assembly held at Arnsberg 1437, and in 1490
heresy and witchcraft were added. For the person found guilty there was
but one punishment, death, and only one manner of death, by the rope.
This penalty could be inflicted without sentence if the offender were
taken in the act, or if he confessed guilt, or if there were
eyewitnesses of the crime.
That among the offenses punishable by the Feme heresy and witchcraft
held almost the first place shows that these tribunals were no object of
apprehension to the ecclesiastical power. This secret association,
therefore, differed from that of the Templars, as also from that of the
Stonemasons (which will be next considered) especially in this, that the
Feme was no league of Illuminati, but that their specialty was
opposition to the law of the stronger and to the rule of petty states,
and that their aim was to uphold and exaggerate antiquated judicial
institutions.
The procedure of the Femgerichte was entirely in accord with the
principle of ancient Teutonic law, that “where no complainant appears,
neither is there any judge.” It was not the inquisitorial court
procedure of the 16th–19th centuries, in which the judge made
investigation on his own account, but a procedure founded entirely in
the practice of civil courts, and one that agreed well with the
independent spirit of the Middle Age, and the view that then prevailed
that law was a matter of personal rights.
The free tribunals took up the complaint from whatever quarter it came.
All schoeffen, too, were under obligation to bring to the attention of
the free courts, and to prosecute all doings coming under the
animadversion of the Feme. Hence were a schoeffe to give information
regarding such offenses to any other court, he was liable to be hanged;
and the same fate befel the one who, having been entrusted with a bill
of accusation, should open the same and betray its contents. Accusations
were not entertained unless when submitted by wissende. The accuser had
to stand betwixt two fellow schoeffen, his sponsors, in front of the
tribunal in kneeling posture.
In every case the first thing done was to decide whether the crime was
one meet for animadversion by the Feme. That decided, the accused was
summoned to appear, if he was a wissender, before the secret tribunal,
if not a wissender, before the open court. The first summons to a
wissender to appear before the secret tribunal was drawn up in writing
by two schoeffen, and allowed the accused a delay of six weeks and three
days. If he did not obey the summons, then four schoeffen summoned him
in person; and this proving ineffectual, six schoeffen and one free graf
repeated the summons, which now was called the “warning.” The delay
allowed was the same as at first. If the accused was a free graf the
number of schoeffen employed in each of the three processes of summoning
was 7, 14 and 21, respectively, and of free grafs 2, 4 and 7. The
schoeffe, on receiving the summons, could appear at any time within the
three delays before the free court and demand a statement of the charges
and the names of the accusers; then he might on his sword swear to his
innocence, and obtain his freedom; but he was liable to be summoned
again. Outsiders were summoned once only, and usually by only one
schoeffe. When the whereabouts of an accused person was unknown, four
summonses were prepared, and these were posted in four places where he
might possibly be found. If the accused was one who inspired fear, the
summons might in the night time be posted or left at the gate of the
castle or of the city in which he lived. In such cases the schoeffen
walked or rode up before the gate, hacked off the crossbeam three chips,
which they kept, put a penny of the realm in the notch, affixed the
summons, and cried out to the castellan or the burgomaster, “We have
stuck a king’s brief in the notch and taken the proof with us: say you
to him that is in the castle that he must on his appointed day present
himself before the free tribunal, on behalf of highest law and the
Emperor’s ban.” When the opposition to the Femgerichte began to gain
force, the summoners were in greater peril often than the summoned:
often they lost their lives.
The day of the trial having arrived, if the accuser was not on hand the
accused was discharged. But if the accused failed to appear, the
accusation was repeated and testimony taken. The free graf then thrice
called the accused by name, and asked if any one was there as his
attorney. If there was no appearance of the accused, the accuser could
demand judgment “after a se’ennight.” In making this demand, he knelt,
laid two fingers of the right hand on his naked sword, affirmed the
guilt of the accused, and six schoeffen, as his sponsors, maintained the
truth of what he swore. If the verdict was against the accused, the free
graf arose, and outlawed the accused, in words like these: “The accused
(name and surname) I except from the peace, the laws and the freedom (of
the empire) as the same have been stablished and decreed by popes and
emperors; and I cast him down and place him in uttermost unquiet and
disgrace, and make him illegitimate, banned, outside the peace,
dishonored, insecure, loveless; and I do outlaw him according to the
sentence of the secret tribunal, and devote his neck to the rope, his
carcass to the birds and beasts to devour; and I commend his soul to the
power of God in heaven; and his fiefs and goods I give up to the lords
of whom the fiefs are held; and I make his wife a widow and his children
orphans.” Then the free graf threw a twisted cord out over the bounds of
the court, the schoeffen spat out, and the name of the outlaw was
written in the book of the condemned. Among the persons thus condemned
were numbered some men of high station, as the dukes Henry and Louis of
Bavaria (1429), John, bishop of Wurtzburg, and others. All free grafs
and schoeffen were henceforth under obligation to arrest and to execute
sentence upon the outlaw (but three members of the Feme were required);
and executing sentence meant hanging the culprit from the nearest tree.
Often the relatives of executed outlaws of the Feme accused the
executioners in the free courts as assassins, and the court could outlaw
its own ministers for carrying out its own decrees. Many were the abuses
that arose, assassination of innocent persons, for example. Murderers,
too, pretended to be schoeffen; and highwaymen robbed under pretense of
sequestering the property of persons condemned by judgment of the Feme.
If ever the condemned, being a wissender and not having overstayed the
se’ennight of grace, appeared in court with six compurgators he was set
free; but if he confessed his guilt, or was convicted, he was executed
forthwith in the usual way. The ban of the Feme could never be lifted;
but the number of death sentences actually carried out was, says
Lindner, “so very small that one might readily allow the Feme’s decree
of outlawry to be pronounced upon him.” Pope Nicolas V. in 1452
condemned the capital executions done by the Feme.
If a man under sentence of death should be proved innocent before he
fell into the hands of the executioners, he was, if a wissender, brought
before the court, with a rope around his neck, wearing white gloves,
carrying a green cross, and attended by two schoeffen; falling on his
knees before the free graf he pleaded for mercy. The free graf, taking
him by the hand, bade him rise, removed the rope from around his neck,
and restored him to the grace and favor of the Feme. But one who was not
a wissender had no rights! He merely escaped death, but there was no
amend. The Emperor gave him “a reprieve of 100 years, 6 weeks and a
day”—that was all; he was forever ineligible to become a schoeffe. Both
processes were called the “entfemung” (“unfeming,” undoing of the Feme’s
judgment).
Many of the condemned, unable to procure the entfemung, ventured to
appeal to the Emperor, the camera, the Pope, or a Church Council. But
the Femgerichte never recognized such appeals, and protested strongly to
the Emperor against them. They regarded the condemned as dead, and said
that no one had the right “to awaken the dead.” The Emperor Sigmund
could think of no means of saving a man under condemnation, except by
taking him into his own service, for the Femgerichte did not care to
take measures against officials of the Kaiser and the empire. Women,
too, as well as aged men and children, were excepted from the cognizance
of the Feme, also, in theory, Jews, for Jews were “servants of the
Emperor’s bedchamber”; ecclesiastics, also, for they could in the Middle
Age be tried only in the spiritual courts; but in the 15th century the
Feme disregarded these provisions, and summoned both Jews and
ecclesiastics.
3. THE END OF THE FEME.
But the Initiates of the Red Earth league met the fate that overtakes
all movements that lag behind the times. The Feme did by no means render
in the days of “faustrecht” (fist-right, the rule of the stronger) so
great services as it has been credited with: never was the insecurity of
life and property so great as when the Femgerichte were most
flourishing. If the extension of the Feme beyond the borders of
Westphalia was a wrong, that wrong became aggravated through the
excessive secrecy of the tribunals. The Feme degenerated steadily, and
the respect in which it was held declined in equal degree. The free
grafs forgot the fair promise of their original institution—that their
function was to protect innocence against the machinations of bad men.
They, and especially the presidents of courts, enriched themselves with
fees for admission of new members, with costs of court, with fines and
fees, and even with moneys got by extortion and oppression. They delayed
trials, condemned innocent persons, overstepped the limits of their
jurisdiction so as to condemn to death the entire male population (over
18 years) of a town, for not obeying a summons. The opposition to the
Femgerichte culminated in the decree of the Emperor Maximilian I.
creating the supreme court of judicature (kammergericht), which left no
further excuse for protecting the free courts. The applications for
admission to the Feme soon grew less, and at last ceased. The princes
changed the free courts into ordinary tribunals, or abolished them. At
the end of the 16th century a capital execution by a Femgericht was a
thing unknown; at the end of the 17th these courts had nearly all
disappeared. But even when Westphalia was a Napoleonic kingdom there
were still living some schoeffen, and not till the decade 1880–90 did
the last free graf disappear, “taking with him to the grave the secret
of the countersign.” The existence of the Feme is still commemorated by
the stone judgment seats under the lindens; and the branches overhead
are still whispering the story of the redoubtable Wissende of the Red
Earth country.
_PART EIGHTH._
_Stonemasons’ Lodges of the Middle Ages._
1. MEDIEVAL ARCHITECTURE.
We have already noted as a prominent characteristic of the Middle Age
this, that freedom of action, except so far as it interfered with the
interests of the clergy or the nobles, was left unrestricted and that
individuals formed social unions for the exercise of it. Thus we have
seen these two dominant classes uniting to form associations which
finally were crowned by the institution of the military orders. But the
medieval world had not followed the arts of peace very long after the
stormy times of the barbarian invasions, before it became conscious of a
need not only of a union of swordsmen and penmen, but also and still
more of a union of handicraftsmen. True, the Middle Age could not rise
to such an intellectual height as would enable it to see that work is
more to be honored than indolence, peace than war: hence the worker had
to take a subordinate place. Of the agricultural laborer this is true
without any reservation: but the artisan was more favorably situated as
soon as the cities had begun to develop.
But the progress made by the artisans was due to their union in
corporations or gilds. The constitutions of the trade gilds derive
partly from the “collegia” of artisans in ancient Rome and partly from
the monastic orders. The “collegia” had secret rites, mysteries, but of
these we have no reliable information; and it is certain that the
medieval gilds had their mysteries, too. Of not all the gilds is this
true; in some of them the secret ceremonial consisted only of passwords
and countersigns by which craftsmen recognized their fellows. The most
elaborate of these mysteries was that of the Stonemasons. And the reason
if this is obvious, for of all trades that of the builder not only makes
most demands on the thinking faculty, involves most details, is the
first to require new methods of facilitating operations, new “wrinkles,”
and these easily are made trade secrets: besides, as builders of
temples, the masons acquired a sacred and mystical character.
After the great migrations the mason’s trade had its home in the
monasteries. As long as architecture or the builder’s art was thus under
monastic guidance, it affected the Romanic style—simple columns, rounded
arches, squat towers; but when the monks forsook art and science, in the
11th and 12th centuries, the craftsmen no longer saw why they should
serve under the direction of men who had no taste for anything but wine,
the chase, and war. And so there arose unions of masons outside of the
monasteries, especially in the cities, and henceforth the monastic
churches were inferior to the city churches in size and splendor. The
change in the circumstances of the builders’ unions, which were now
selfcontrolled, was seen in the development of a new style. Instead of
the single columns rose clustered columns, symbol of free union, and of
the strength that comes of harmonious action between equals; in the
place of rounded arches, pointed ones, to show that the forces that
conspired to raise the structure did not sacrifice their several
individualities, but freely contributed each its share toward the
attainment of the end; in place of squat, close towers, tall spires
aspiring to infinitude, and open on all sides, as much as to say, “Here
we stand free and open, acknowledging no laws but those of heaven.” Then
came decoration of the window arches, which showed a different design in
each, thus entering a protest against all stereotyped uniformity. This
was the true Germanic or Gothic architecture, the triumph of the free
Teutonic spirit, which favors the unhindered development and the
unrestricted independence of individual genius. It was also the
expression of mysticism, with innumerable spirelets striving heavenward
to find the Divine. Hence the Gothic style has somewhat of gloom and
melancholy in its vast arches and narrow windows. It invites the free
spontaneous spirit of man to sound the depths of his own nature, and so
is as adverse to obtrusive dogmatism as to reckless investigation and
illuminism, which disturb prejudices. Hence as the Romanic style is the
architecture of the popedom, so is the Gothic that of free church life;
and then the architecture of illuminism followed as the style of the
Renaissance.
2. THE STONEMASONS’ LODGES OF GERMANY.
The meeting places of the masons’ unions in the cities were the board
huts that stood on the site of churches in process of construction,
affording shelter to the masons or stone cutters while at work. These
huts, or “lodges,” were at an early period leagued together, and the
members of the leagues, in memory of their formerly having been inmates
of monasteries, called one another Brother, and their unions
Brotherhoods; they also bestowed on their chief officers such tokens of
respect as are found in the clerical epithets “reverend” and
“worshipful.” The date of the formation of this league cannot be
determined. It appears to have been in full swing in the 13th century,
and the credit of its definitive organization is usually given to Albert
the Great, Count of Bollstadt, a celebrated Dominican friar (b. 1200, d.
1280). Albert lived nearly all his life in Cologne, and therefore the
famous Cathedral of Cologne is to be regarded as the cradle of the great
league of stonemasons’ lodges.