Almost every word in the German and cognate languages, which bears the slightest resemblance to the word _Fehm_[116], has been given by some writer or other as its true etymon. It is unnecessary, in the present sketch of the history of the Fehm-gerichte, to discuss the merits of each of the claimants: we shall content ourselves with remarking that, among those which appear to have most probability in their favour, is the Latin _Fama_, which was first proposed by Leibnitz. At the time when we have most reason for supposing these tribunals to have been inst.i.tuted the Germans were familiar with the language of the civil and canonical laws; the Fehm-gerichte departed from the original maxim of German law, which was--_no accuser, no judge_, and, in imitation of those foreign laws[117], proceeded on _common fame_, and without any formal accusation against persons suspected of crime or of evil courses.

Moreover, various tribunals, not in Westphalia, which proceeded in the same manner, on common report, were also called Fehm-gerichte, which may therefore be interpreted Fame-tribunals, or such as did not, according to the old German rule, require a formal accusation, but proceeded to the investigation of the truth of any charge which common fame or general report made against any person--a dangerous mode of proceeding, no doubt, and one liable to the greatest abuse, but which the lawless state of Germany at that period, and the consequent impunity which great criminals would else have enjoyed, from the fear of them, which would have kept back accusers and witnesses, perhaps abundantly justified. It is proper to observe, however, that _fem_ appears to be an old German word, signifying condemnation; and it is far from being unlikely, after all, that the Fehm-gerichte may mean merely the tribunals of condemnation--in other words, courts for the punishment of crime, or what we should call criminal courts.

[Footnote 116: Spelt also _Fem_, _Fam_, _Vem_, _Vehm_. In German _f_ and _v_ are p.r.o.nounced alike, as also are _a_ and _e_. The words from which _Fahm_ has been derived are _Fahne_, a standard; _Femen_, to skin; _Fehde_, feud; _Vemi_ (i. e. vae mihi), wo is me; _Ve_ or _Vaem_, which Dreyer says signifies, in the northern languages, _holy_; _Vitte_ (old German), prudence; _Vette_, punishment; the _Fimmiha_ of the Salic law; Swedish _Fem_, Islandic _Fimm_, five, such being erroneously supposed to be the number of judges in a Fehm, or court. Finally, Mozer deduces it from _Fahm_, which he says is employed in Austria and some other countries for _Rahm_, cream.]

[Footnote 117: Common fame was a sufficient ground of arraignment in England, also, in the Anglo-Saxon period.]

The Fehm-gerichte was not the only name which these tribunals bore; they were also called _Fehm-ding_, the word _ding_[118] being, in the middle ages, equivalent to _gericht_, or tribunal. They were also called the Westphalian tribunals, as they could only be holden in the _Red Land_, or Westphalia, and only Westphalians were amenable to their jurisdiction. They were further styled free-seats (_Frei-stuhle_, _stuhl_ also being the same as _gericht_), free-tribunals, &c., as only freemen were subject to them. A Frei-gericht, however, was not a convertible term with a Westphalian Fehm-gericht; the former was the genus, the latter the species. They are in the records also named Secret Tribunals, (_Heimliche Gerichte_), and Silent Tribunals (_Stillgerichte_), from the secrecy of their proceedings; Forbidden Tribunals (_Verbotene Gerichte_), the reason of which name is not very clear; Carolinian Tribunals, as having been, as was believed, inst.i.tuted by Charles the Great; also the Free Bann, which last word was equivalent to _jurisdiction_. A Fehm-gericht was also termed a _Heimliche Acht_, and a _Heimliche beschlossene Acht_ (secret and secret-closed tribunal); _acht_ also being the same as _gericht_, or tribunal.

[Footnote 118: In the northern languages, _Ting_; hence the _Store Ting_ (in our journals usually written _Storthing_), i. e. _Great Ting_, or Parliament of Norway.]

CHAPTER II.

The Tribunal-Lord--The Count--The Schoppen--The Messengers--The Public Court--The Secret Tribunal--Extent of its Jurisdiction--Places of holding the Courts--Time of holding them--Proceedings in them--Process where the criminal was caught in the fact--Inquisitorial Process.

Having traced the origin of the Fehm-gerichte and their various appellations, as far as the existing doc.u.ments and other evidences admit, we are now to describe the const.i.tution and procedure of these celebrated tribunals, and to ascertain who were the persons that composed them; whence their authority was derived; and over what cla.s.ses of persons their jurisdiction extended.

Even in the periods of greatest anarchy in Germany, the emperor was regarded as the fountain of all judicial power and authority, more particularly where it extended to the right of inflicting capital punishment. The Fehm-gerichte, therefore, regarded the emperor as their head, from whom they derived all the power which they possessed, and acknowledged his right to control and modify their const.i.tution and decisions. These rights of the emperors we shall, in the sequel, describe at length.

Between the emperor and the Westphalian tribunal-lords (_Stuhlherren_), as they were styled, that is, lay and ecclesiastical territorial lords, there was no intermediate authority until the fourteenth century, when the Archbishop of Cologne was made the imperial lieutenant in Westphalia. Each tribunal-lord had his peculiar district, within which he had the power of erecting-tribunals, and beyond which his authority did not extend. He either presided in person in his court, or he appointed a count (_Freigraf_) to supply his place. The rights of a stuhlherr[119] had some resemblance to those of the owner of an advowson in this country. He had merely the power of nominating either himself or another person as count; the right to inflict capital punishment was to be conferred by the emperor or his deputy. To this end, when a tribunal-lord presented a count for invest.i.ture, he was obliged to certify on oath that the person so presented was truly and honestly, both by father and mother, born on Westphalian soil; that he stood in no ill repute; that he knew of no open crime he had committed; and that he believed him to be perfectly well qualified to preside over the county.

[Footnote 119: _Stuhlherr_ is _tribunal-lord_, or, literally, _lord of the seat_ (of judgment); _stuhl_ (_Anglice_, stool) being a seat, or chair.]

The count, on being appointed, was to swear that he would judge truly and justly, according to the law and the regulations of the emperor Charles and the _closed tribunal_; that he would be obedient to the emperor or king, and his lieutenant; and that he would repair, at least once in each year, to the general chapter which was to be held on the Westphalian land, and give an account of his conduct, &c.

The income of the free-count arose from fees and a share in fines; he had also a fixed allowance in money or in kind from the stuhlherr. Each free-schoppe who was admitted made him a present, _to repair_, as the laws express it, _his countly hat_. If the person admitted was a knight, this fee was a mark of gold; if not, a mark of silver. Every one of the initiated who cleared himself by oath from any charge paid the count a cross-penny. He had a share of all the fines imposed in his court, and a fee on citations, &c.

There was in general but one count to each tribunal; but instances occur of there being as many as seven or eight. The count presided in the court, and the citations of the accused proceeded from him.

Next to the count were the a.s.sessors or (_Schoppen_)[120]. These formed the main body and strength of the society. They were nominated by the count with the approbation of the tribunal-lord. Two persons, who were already in the society, were obliged to vouch on oath for the fitness of the candidate to be admitted. It was necessary that he should be a German by birth; born in wedlock of free parents; of the Christian religion; neither ex-communicate nor outlawed; not involved in any Fehm-gericht process; a member of no spiritual order, &c.

[Footnote 120: This word, which cannot be adequately translated, is the low-Latin _Scabini_, the French _Echevins_. We shall take the liberty of using it throughout. The schoppen were called frei-(_free_) schoppen, as the count was called _frei-graf_, the court _frei-stuhl_, on account of the jurisdiction of the tribunals being confined to freemen.]

These schoppen were divided into two cla.s.ses, the knightly, and the simple, respectable a.s.sessors; for, as the maxim that every man should be judged by his peers prevailed universally during the middle ages, it was necessary to conform to it also in the Fehm-tribunals.

Previous to their admission to a knowledge of the secrets of the society, the schoppen were named Ignorant; when they had been initiated they were called Knowing (_Wissende_) or Fehmenotes. It was only these last who were admitted to the secret-tribunal. The initiation of a schoppe was attended with a good deal of ceremony. He appeared bare-headed before the a.s.sembled tribunal, and was there questioned respecting his qualifications. Then, kneeling down, with the thumb and forefinger of his right hand on a naked sword and a halter, he p.r.o.nounced the following oath after the count:--

"I promise, on the holy marriage, that I will, from henceforth, aid, keep, and conceal the holy Fehms, from wife and child, from father and mother, from sister and brother, from fire and wind, from all that the sun shines on and the rain covers, from all that is between sky and ground, especially from the man who knows the law, and will bring before this free tribunal, under which I sit, all that belongs to the secret jurisdiction of the emperor, whether I know it to be true myself, or have heard it from trustworthy people, whatever requires correction or punishment, whatever is Fehm-free (_i. e._ a crime committed in the county), that it may be judged, or, with the consent of the accuser, be put off in grace; and will not cease so to do, for love or for fear, for gold or for silver, or for precious stones; and will strengthen this tribunal and jurisdiction with all my five senses and power; and that I do not take on me this office for any other cause than for the sake of right and justice; moreover, that I will ever further and honour this free tribunal more than any other free tribunals; and what I thus promise will I stedfastly and firmly keep, so help me G.o.d and his Holy Gospel."

He was further obliged to swear that he would ever, to the best of his ability, enlarge the holy empire; and that he would undertake nothing with unrighteous hand against the land and people of the stuhlherr.

The count then inquired of the officers of the court (the _Frohnboten_) if the candidate had gone through all the formalities requisite to reception, and when that officer had answered in the affirmative, the count revealed to the aspirant the secrets of the tribunal, and communicated to him the secret sign by which the initiated knew one another. What this sign was is utterly unknown: some say that when they met at table they used to turn the point of their knife to themselves, and the haft away from them. Others take the letters S S G G, which were found in an old MS. at Herford, to have been the sign, and interpret them _Stock Stein, Gras Grein_. These are, however, the most arbitrary conjectures, without a shadow of proof. The count then was bound to enter the name of the new member in his register, and henceforth he was one of the powerful body of the initiated.

Princes and n.o.bles were anxious to have their chancellors and ministers, corporate towns to have their magistrates, among the initiated. Many princes sought to be themselves members of this formidable a.s.sociation, and we are a.s.sured that in the fourteenth and fifteenth centuries (which are the only ones of which we have any particular accounts) the number of the initiated exceeded 100,000.

The duty of the initiated was to go through the country to serve citations and to trace out and denounce evil-doers; or, if they caught them in the fact, to execute instant justice upon them. They were also the count's a.s.sessors when the tribunal sat. For that purpose seven at least were required to be present, all belonging to the county in which the court was held; those belonging to other counties might attend, but they could not act as a.s.sessors; they only formed a part of the by-standers of the court. Of these there were frequently some hundreds present.

All the initiated of every degree might go on foot and on horseback through the country, for daring was the man who would presume to injure them, as certain death was his inevitable lot. A dreadful punishment also awaited any one of them who should forget his vow and reveal the secrets of the society; he was to be seized, a cloth bound over his eyes, his hands tied behind his back, a halter put about his neck; he was to be thrown upon his belly, his tongue pulled out behind by the nape of his neck, and he was then to be hung seven feet higher than any other felon. It is doubtful, however, if there ever was a necessity for inflicting this punishment, for aeneas Sylvius, who wrote at the time when the society had degenerated, a.s.sures us that no member had ever been induced, by any motives whatever, to betray its secrets; and he describes the initiated as grave men and lovers of right and justice.

Similar language is employed concerning them by other writers of the time.

Besides the count and the a.s.sessors, there were required, for the due holding a Fehm-court, the officers named _Frohnboten_[121], or serjeants, or messengers, and a clerk to enter the decisions in what was called the blood-book (_Liber sanguinis_). These were, of course, initiated, or they could not be present. It was required that the messengers should be freemen belonging to the county, and have all the qualifications of the simple schoppen. Their duty was to attend on the court when sitting, and to take care that the ignorant, against whom there was any charge, were duly cited[122].

[Footnote 121: _Frohnbote_ is interpreted a _Holy Messenger_, or a _Servant of G.o.d_.]

[Footnote 122: When a person was admitted into the society he paid, besides the fee to the count already mentioned, to each schoppe who was a.s.sisting there, and to each frohnbote, four livres Tournois.]

The count was to hold two kinds of courts, the one public, named the Open or Public Court (_Offenbare Ding_), to which every freeman had access; the other private, called the Secret Tribunal (_Heimliche Acht_), at which no one who was not initiated could venture to appear.

The former court was held at stated periods, and at least three times in each year. It was announced fourteen days previously by the messengers (_Frohnboten_), and every householder in the county, whether initiated or not, free or servile, was bound under a penalty of four heavy shillings, to appear at it and declare on oath what crimes he knew to have been committed in the county.

When the count held the Secret Court, the clergy, who had received the tonsure and ordination, women and children, Jews and Heathens[123], and, as it would appear, the higher n.o.bility, were exempted from its jurisdiction. The clergy were exempted, probably, from prudential motives, as it was not deemed safe to irritate the members of so powerful a body, by encroaching on their privileges; they might, however, voluntarily subject themselves to the Fehm-gerichte if they were desirous of partaking of the advantages of initiation. Women and children were exempt on account of their s.e.x and age, and the period of infancy was extended, in the citations, to fourteen, eighteen, and sometimes twenty years of age. Jews, Heathens, and such like, were exempted on account of their unworthiness. The higher n.o.bility were exempted (if such was really the case) in compliance with the maxim of German law that each person should be judged by his peers, as it was scarcely possible that in any county there could be found a count and seven a.s.sessors of equal rank with accused persons of that cla.s.s.

[Footnote 123: The natives of Prussia were still heathens at that time.]

In their original const.i.tution the Fehm-gerichte, agreeably to the derivation of the name from _Fem_, condemnation, were purely criminal courts, and had no jurisdiction in civil matters. They took cognizance of all offences against the Christian faith, the holy gospel, the holy ten commandments, the public peace, and private honour--a category, however, which might easily be made to include almost every transgression and crime that could be committed. We accordingly find in the laws of the Fehm-gerichte, sacrilege, robbery, rape, murder, apostacy, treason, perjury, coining, &c., &c., enumerated; and the courts, by an astute interpretation of the law, eventually managed to make matters which had not even the most remote appearance of criminality _Fehmbar_, or within their jurisdiction.

But all exceptions were disregarded in cases of contumacy, or of a person being taken in the actual commission of an offence. When a person, after being duly cited, even in a civil case, did not appear to answer the charge against him, he was outlawed, and his offence became _fehmbar_; every judge was then authorized to seize the accused, whether he belonged to his county or not; the whole force of the initiated was now directed against him, and escape was hardly possible. Here it was that the superior power of the Fehm-gerichte exhibited itself. Other courts could outlaw as well as they, but no other had the same means of putting its sentences into execution. The only remedy which remained for the accused was to offer to appear and defend his cause, or to sue to the emperor for protection. In cases where a person was caught _flagranti delicto_, the Westphalian tribunals were competent to proceed to instant punishment.

Those who derive their knowledge of the Fehm-gerichte from plays and romances are apt to imagine that they were always held in subterranean chambers, or in the deepest recesses of impenetrable forests, while night, by pouring her deepest gloom over them, added to their awfulness and solemnity. Here, as elsewhere, we must, however reluctantly, lend our aid to dispel the illusions of fiction. They were _not_ held either in woods or in vaults, and rarely even under a roof. There is only _one_ recorded instance of a Fehm-gericht being held under ground, viz., at Heinberg, under the house of John Menkin. At Paderborn indeed it was held in the town-house; there was also one held in the castle of Wulften. But the situation most frequently selected for holding a court was some place under the blue canopy of heaven, for the free German still retained the predilection of his ancestors for open s.p.a.ce and expansion. Thus at Nordkirchen and Sudkirchen (_north and south church_) the court was held in the churchyard; at Dortmund, in the market-place close by the town-house. But the favourite place for holding these courts was the neighbourhood of trees, as in the olden time: and we read of the tribunal at Arensberg in the orchard; of another under the hawthorn; of a third under the pear-tree; of a fourth under the linden, and so on. We also find the courts denominated simply from the trees by which they were held, such as the tribunal at the elder, that at the broad oak, &c.

The idea of their being held at night is also utterly devoid of proof, no mention of any such practice being found in any of the remaining doc.u.ments. It is much more a.n.a.logous to Germanic usage to infer that, as the Public Court, and the German courts in general, were held in the morning, soon after the break of day, such was also the rule with the Secret Court.

When an affair was brought before a Fehm-court, the first point to be determined was whether it was a matter of Fehm-jurisdiction. Should such prove to be the case, the accused was summoned to appear and answer the charge before the Public Court. All sorts of persons, Jews and Heathens included, might be summoned before this court, at which the uninitiated schoppen also gave attendance, and which was as public as any court in Germany. If the accused did not appear, or appeared and could not clear himself, the affair was transferred to the Secret Court. Civil matters also, which on account of a denial of satisfaction were brought before the Fehm-court, were, in like manner, in cases of extreme contumacy, transferred thither.

The Fehm-tribunals had three different modes of procedure, namely, that in case of the criminal being taken in the fact, the inquisitorial, and the purely accusatorial.

Two things were requisite in the first case; the criminal must be taken in the fact, and there must be three schoppen, at least, present to punish him. With respect to the first particular, the legal language of Saxony gave great extent to the term _taken in the fact_. It applied not merely to him who was seized in the instant of his committing the crime, but to him who was caught as he was running away. In cases of murder, those who were found with weapons in their hands were considered as taken in the fact; as also, in case of theft, was a person who had the key of any place in which stolen articles were found, unless he could prove that they came there without his consent or knowledge. The Fehm-law enumerated three tokens or proofs of guilt in these cases; the Habende Hand (_Having Hand_), or having the proof in his hand; the Blickende Schein (_looking appearance_), such as the wound in the body of one who was slain; and the Gichtige Mund (_faltering mouth_), or confession of the criminal. Still, under all these circ.u.mstances, it was necessary that he should be taken immediately; for if he succeeded in making his escape, and was caught again, as he was not this time taken in the fact, he must be proceeded against before the tribunal with all the requisite formalities.

The second condition was, that there should be at least three initiated persons together, to ent.i.tle them to seize, try, and execute a person taken in the fact. These then were at the same time judges, accusers, witnesses, and executioners. We shall in the sequel describe their mode of procedure. It is a matter of uncertainty whether the rule of trial by peers was observed on these occasions: what is called the Arensberg Reformation of the Fehm-law positively a.s.serts, that, in case of a person being taken _flagranti delicto_, birth formed no exemption, and the n.o.ble was to be tried like the commoner. The cases, however, in which three of the initiated happened to come on a criminal in the commission of the fact must have been of extremely rare occurrence.

When a crime had been committed, and the criminal had not been taken in the fact, there remained two ways of proceeding against him, namely, the _inquisitorial_ and the _accusatorial_ processes. It depended on circ.u.mstances which of these should be adopted. In the case, however, of his being initiated, it was imperative that he should be proceeded against accusatorially.

Supposing the former course to have been chosen,--which was usually done when the criminal had been taken in the fact, but had contrived to escape, or when he was a man whom common fame charged openly and distinctly with a crime,--he was not cited to appear before the court or vouchsafed a hearing. He was usually denounced by one of the initiated; the court then examined into the evidence of his guilt, and if it was found sufficient he was outlawed, or, as it was called, _forfehmed_[124], and his name was inscribed in the blood-book. A sentence was immediately drawn out, in which all princes, lords, n.o.bles, towns, every person, in short, especially the initiated, were called upon to lend their aid to justice. This sentence, of course, could originally have extended only to Westphalia; but the Fehm-courts gradually enlarged their claims; their pretensions were favoured by the emperors, who regarded them as a support to their authority; and it was soon required that their sentence should be obeyed all over the empire, as emanating from the imperial power.

[Footnote 124: In German _Verfehmt_. We have ventured to coin the word in the text. The English for answers to the German _ver_; _vergessen_ is _forget_; _verloren_ is _forlorn_.]

Unhappy now was he who was _forfehmed_; the whole body of the initiated, that is 100,000 persons, were in pursuit of him. If those who met him were sufficient in number, they seized him at once; if they felt themselves too weak, they called on their brethren to aid, and every one of the society was bound, when thus called on by three or four of the initiated, who averred to him on oath that the man was _forfehmed_, to help to take him. As soon as they had seized the criminal they proceeded without a moment's delay to execution; they hung him on a tree by the road-side and not on a gallows, intimating thereby that they were ent.i.tled to exercise their office in the king's name anywhere they pleased, and without any regard to territorial jurisdiction. The halter which they employed was, agreeably to the usage of the middle ages, a _withy_; and they are said to have had so much practice, and to have arrived at such expertness in this business, that the word _Fehmen_ at last began to signify simply _to hang_, as _execution_ has come to do in English. It is more probable, however, that this, or something very near it, was the original signification of the word from which the tribunals took their name. Should the malefactor resist, his captors were authorised to knock him down and kill him. In this case they bound the dead body to a tree, and stuck their knives beside it, to intimate that he had not been slain by robbers, but had been executed in the name of the emperor.

Were the person who was _forfehmed_ uninitiated, he had no means whatever of knowing his danger till the halter was actually about his neck; for the severe penalty which awaited any one who divulged the secrets of the Fehm-courts was such as utterly to preclude the chance of a friendly hint or warning to be on his guard. Should he, however, by any casualty, such, for instance, as making his escape from those who attempted to seize him, become aware of how he stood, he might, if he thought he could clear himself, seek the protection and aid of the Stuhlherr, or of the emperor.

If any one knowingly a.s.sociated with or entertained a person who was _forfehmed_, he became involved in his danger. It was necessary, however, to prove that he had done so knowingly--a point which was to be determined by the emperor, or by the judge of the district in which the accused resided. This rule originally had extended only to Westphalia, but the Fehm-judges afterwards a.s.sumed a right of punishing in any part of the empire the person who entertained one who was _forfehmed_.

Nothing can appear more harsh and unjust than this mode of procedure to those who would apply the ideas and maxims of the present to former times. But violent evils require violent remedies; and the disorganized state of Europe in general, and of Germany in particular, during the middle ages, was such as almost to exceed our conception. Might it not then be argued that we ought to regard as a benefit, rather than as an evil, any inst.i.tution which set some bounds to injustice and violence, by infusing into the bosom of the evil-doer a salutary fear of the consequences? When a man committed a crime he knew that there was a tribunal to judge it from which his power, however great it might be, would not avail to protect him; he knew not who were the initiated, or at what moment he might fall into their hands; his very brother might be the person who had denounced him; his intimate a.s.sociates might be those who would seize and execute him. So strongly was the necessity of such a power felt in general, that several cities, such as Nuremberg, Cologne, Strasburg, and others, applied for and obtained permission from the emperors, to proceed to pa.s.s sentence of death on evil-doers even unheard, when the evidence of common fame against them was satisfactory to the majority of the town-council. Several counts also obtained similar privileges, so that there were, as we may see, Fehm-courts in other places besides Westphalia, but they were far inferior to those in power, not having a numerous body of schoppen at their devotion.

It is finally to be observed that it was only when the crimes were of great magnitude, and the voice of fame loud and constant, that the inquisitorial process could be properly adopted. In cases of a minor nature the accused had a right to be heard in his own behalf. Here then the inquisitorial process had its limit: if report was not sufficiently strong and overpowering, and the matter was still dubious, the offender was to be proceeded against accusatorially. If he was one of the initiated, such was his undoubted right and privilege in all cases.