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 theassessors 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 wasforfehmedby the following awful curse: it was declared that "he should be excluded from the public peace, from all liberties and rights, and the highestun-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 theemperor 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 schöppen 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 schöppe 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 schöppen 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 schöppen 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 thesentence, 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 securityde 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 theSecret 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 schöppen, 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 calledreplacing 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 towhere 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-schöppen, 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.
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 schöppen, 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 schöppen who had been admitted, as well as of the suits which had been commenced, with the names of the accusers, the accused, theforfehmed, &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 thelower 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 schöppen, provided he did so on Westphalian soil. Every schöppe was moreover bound to give a true answer to the emperor when he asked whether such a one wasforfehmedor 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 himfor 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 beenforfehmed, which safe-conduct the schöppen dared not violate. Even whena person had beenforfehmed, 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 himselfinitiated, for otherwise he could not, for instance, appear where a court was sitting, make alterations in laws with which, ifignorant, he must necessarily be unacquainted, or extend mercy when he could not know who wasforfehmedor 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-schöppen 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 schöppen, in cases of appeal to him, without bringing the affair before the general chapter; and he had the power of making schöppen 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 Archbishopof 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 schöppe 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 theemperor 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, Soëst, Münster, and Osnabrück, 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 ofStatus in Statu, to be independent of their authority.
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:—
"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 wandand 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.
"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 calledJus Veniæ, because there was grace in it, which has been corrupted and madeVim-richt."
There were similar courts, we are told, at places named Wölpe 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, namedFehmenotes, 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 Fehmenoteswere 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 thecastle 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 theMaiden'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.
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 possiblycorrect. 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.
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 candidatefor 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 offrom 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.
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 theirprivate sign, and he took on him to make frei-schöppen, contrary to the law, out of Westphalia. These schöppen 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 schöppen, their reply was, "We ask them at what court they were made schöppen. Should it appear that they were made schöppen 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 schöppen. 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 theempire. 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, Lübeck, Augsburg, Nuremberg, Erfurt, Görlitz, 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 Görlitz by means of one of its inhabitants named Nickel Weller. This man, who was a Westphalian schöppe, was accused of having disinterred an unchristened child, and of having madea 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 Görlitz 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 Görlitz 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 Görlitz still remained in force, and the new commissioners appointed by the pope even confirmed it.
Finding that he had nothing to expect from papalinterference, 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 Görlitz 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, Görlitz 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 Görlitz 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 Görlitz. It was farther added that, if any one should impede Weller in the prosecution of his rights, that person shouldipso factofall 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 Görlitz, 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 Görlitz 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 Görlitz 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 Görlitz who happened to be there.
The two towns of Görlitz 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 Görlitz, 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 Landgrafof 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 Görlitz, 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 Görlitz 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 schöppen. 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 Görlitz. 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. Wefind that a citizen of the town of Dantzig, named Hans Holloger, who was a free schöppe, 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 withan 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 GrandMaster, 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 Rothofé. 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 comradePaul 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].
He had, however, caused the order abundance ofuneasiness 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-schöppe 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-schöppe, 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 beoutlawed, 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 Wünnenberg 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 Münster. 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.
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 schöppe without producing satisfactory evidence as to the correctness of his character; but now, in the case of either count or schöppe, 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, andforfehmedin 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 extendingand 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 ata 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 schöppe'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 ofthe 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 Würtemberg 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 schöppe, and had performed the deedin 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 Würtemberg. 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 schöppen 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 Münster, was accused, and probably with truth, of having committed repeated acts of adultery. The Free-tribunal of Münster 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 Münster, 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 schöppen, 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 tointerfere 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 Münster 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!