It is plain, that, to be able to exercise these rights, the emperor must be himself _initiated_, for otherwise he could not, for instance, appear where a court was sitting, make alterations in laws with which, if _ignorant_, he must necessarily be unacquainted, or extend mercy when he could not know who was _forfehmed_ or not. In the laws establishing the rights of the emperor it was therefore always inserted, _provided he be initiated_, and the acts of uninitiated emperors were by the Fehm-courts frequently declared invalid. The emperor had, therefore, his choice of setting a subst.i.tute 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-schoppen 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 schoppen, in cases of appeal to him, without bringing the affair before the general chapter; and he had the power of making schoppen at any tribunal in Westphalia, which proves that, like the emperor, he had free access to them all. Hence it is clear that he also must have been initiated.

The dignity and pre-eminence of the Archbishop of Cologne, when this office had been conferred on him, caused a good deal of envy and jealousy among the lords of Westphalia, who had been hitherto his equals, and who considered themselves equally ent.i.tled 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 schoppe could be made, no cause brought into the court, not even a summons issued, without his approbation. There even lay a kind of appeal to him from the sentence of the count; and he could also, like the emperor, withdraw certain persons and causes from his jurisdiction. But as his power did not extend beyond his own territory, the count might refer those causes in which he wished, but was prohibited, to proceed, to the courts in other territories; he might also, if he apprehended opposition from the Tribunal-lord, require him (if initiated) to be present at the proceedings.

The Tribunal-lord, if uninitiated, could, like the emperor in the same case, exercise these powers only by initiated deputies.

The great advantage which resulted from the right of having Fehm-tribunals induced the high lords, both spiritual and temporal, to be very anxious to become possessed of this species of territorial property, and in consequence nearly all the lords in Westphalia had Fehm-tribunals. Even towns, such as Dortmund, Soest, Munster, and Osnabruck, had these tribunals, either within their walls, or in their districts, or their neighbourhood, for it would not have been good policy in them to suffer this sort of _Status in Statu_, to be independent of their authority.

CHAPTER V.

Fehm-courts at Celle--At Brunswick--Tribunal of the Knowing in the Tyrol--The Castle of Baden--African Purrahs.

We have now gone through the const.i.tution 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 inst.i.tutions resembling them may be elsewhere found.

Fehm-tribunals were, in fact, as we have already observed, not peculiar to Westphalia. In a MS. life of Duke Julius of Celle, by Francis Algermann[126], of the year 1608, we read the following description of a Fehm-court, which the author remembered to have seen holden at Celle in his youth:--

[Footnote 126: Berck, p. 231, from Spittler's History of Hanover.]

"When the Fehm-law[127] was to be put in operation, all the inhabitants of the district who were above twelve years of age were obliged to appear, without fail, on a heath or some large open place, and sit down on the ground. Some tables were then set in the middle of the a.s.sembly, at which the prince, his councillors, and bailiffs, took their seats.

The Secret Judges then reported the delinquents and the offences; and they went round with a white wand and smote the offenders on the legs.

Whoever then had a bad conscience, and knew himself to be guilty of a capital offence, was permitted to stand up and to quit the country within a day and a night. He might even wait till he got the second blow. But if he was struck the third time, the executioner was at hand, a pastor gave him the sacrament, and away with him to the nearest tree.

[Footnote 127: _Vimricht_, i.e. _Fehm-law_, the German word, of which the author presently gives a childish etymology.]

"But if a person was struck but once or twice, that was a paternal warning to him to amend his life thenceforward. Hence it was called _Jus Veniae_, because there was grace in it, which has been corrupted and made _Vim-richt_."

There were similar courts, we are told, at places named Wolpe and Rotenwald. Here the custom was for the Secret Judges, when they knew of any one having committed an offence which fell within the Fehm-jurisdiction, to give him a private friendly warning. To this end they set, during the night, a mark on his door, and at drinking-parties they managed to have the can sent past him. If these warnings took no effect the court was held.

According to an ancient law-book, the Fehm-court at Brunswick was thus regulated and holden. Certain of the most prudent and respectable citizens, named _Fehmenotes_, had the secret duty of watching the conduct of their fellow-citizens and giving information of it to the council. Had so many offences been committed that it seemed time to hold a Fehm-court, a day was appointed for that purpose. Some members of the council from the different districts of the town met at midnight in St.

Martin's churchyard, and then called all the council together. All the gates and entrances of the town were closed; all corners and bridges, and the boats both above and below the town, were guarded. The Fehm-clerk was then directed to begin his office, and the Fehmenotes were desired to give their informations to him to be put into legal form if the time should prove sufficient.

At daybreak it was notified to the citizens that the council had resolved that the Fehm-court should be holden on this day, and they were directed to repair to the market-place as soon as the tocsin sounded.

When the bell had tolled three times all who had a.s.sembled 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 s.p.a.ce 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 munic.i.p.al 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 pa.s.sed over without notice, as it seems to be the model after which our popular novelist described his Fehm-tribunal in Switzerland! A female writer in Germany[128] informs us that beneath the castle of Baden the vaults extend to a considerable distance in labyrinthine windings, and were in former times appropriated to the secret mysteries of a Fehm-tribunal.

Those who were brought before this awful tribunal were not conducted into the castle-vaults in the usual way; they were, lowered into the gloomy abyss by a cord in a basket, and restored to the light, if so fortunate as to be acquitted, in the same manner; so that they never could, however inclined, discover where they had been. The ordinary entrance led through a long dark pa.s.sage, 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 pa.s.sage you reached the torture-room, where you saw hooks in the wall, thumb-screws, and every species of instruments of torture. A door on the left opened into a recess, the place of the _Maiden's Kiss_. When any person who had been condemned was led hither, a stone gave way under his feet, and he fell into the arms of the Maiden, who, like the wife of Nabis, crushed him to death in her arms, which were thick set with spikes. Proceeding on farther, after pa.s.sing through several doors, you came to the vault of the Tribunal. This was a long s.p.a.cious 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 a.s.sessors had their seats on wooden benches along the walls.

[Footnote 128: Friederika Brun. Episoden aus Reisen durch das Sudliche Deutschland, &c.]

We need not to observe how totally different from the proceedings of a genuine Fehm-tribunal is all this. That there are vaults under the castle of Baden is certain, and the description above given is possibly correct. But the Fehm-court which was held in them is the mere coinage of the lady's brain, and utterly unlike any thing real, unless it be the Holy Office, whose secret proceedings never could vie in justice or humanity with those of the Westphalian Fehm-courts. It is, moreover, not confirmed by any doc.u.ment, or even by the tradition of the place, and would be undeserving of notice were it not for the reason a.s.signed above.

The similarity between the Fehm-courts and the Inquisition has been often observed. In the secrecy of their proceedings, and the great number of agents which they had at their devotion, they resemble each other; but the Holy Office had nothing to correspond to the public and repeated citations of the Fehm-courts, the fair trial given to the accused, the leaning towards mercy of the judges, and the right of appeal which was secured.

The most remarkable resemblance to the Fehm-tribunals is (or was) to be found among the negroes on the west coast of Africa, as they are described by a French traveller[129]. These are the Purrahs of the Foollahs, who dwell between Sierra Leone river and Cape Monte.

[Footnote 129: Golberry, Voyage en Afrique, t. i. p. 114, and seq.]

There are five tribes of this people, who form a confederation, at the head of which is a union of warriors, which is called a Purrah. Each tribe has its own separate Purrah, and each Purrah has its chiefs and its tribunal, which is, in a more restricted sense, also called a Purrah. The general Purrah of the confederation is formed from the Purrahs of the five tribes.

To be a member of the inferior Purrahs, a man must be thirty years of age; no one under fifty can have a seat in the general Purrah. The candidate for admission into an inferior Purrah has to undergo a most severe course of probation, in which all the elements are employed to try him. Before he is permitted to enter on this course, such of his relatives as are already members are obliged to pledge themselves for his fitness, and to swear to take his life if ever he should betray the secrets of the society. Having pa.s.sed 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 a.s.sembly. Making no delay, they reach the devoted district before the break of day, and in parties of from forty to sixty men, they fall unexpectedly on the devoted tribe, and, with fearful cries, making known the sentence of the great Purrah, proceed to put it into execution. The booty is then divided: one half is given to the injured tribe, the other falls to the great Purrah, who bestow one half of their share on the warriors who executed their sentence.

Even a single family, if its power should appear to be increasing so fast as to put the society in fear for its independence, is condemned to a plundering by the Purrah. It was thus, though under more specious pretexts, that the Athenian democracy sought to reduce the power of their great citizens by condemning them to build ships, give theatrical exhibitions, and otherwise spend their fortunes.

Nothing can exceed the dread which the Purrah inspires. The people speak of it with terror and awe, and look upon the members of it as enchanters who are in compact with the devil. The Purrah itself is solicitous to diffuse this notion as much as possible, esteeming it a good mean for increasing its power and influence. The number of its members is estimated at upwards of 6000, who recognise each other by certain words and signs. Its laws and secrets are, notwithstanding the great number of the members, most religiously concealed from the knowledge of the uninitiated.

CHAPTER VI.

The Emperor Lewis the Bavarian--Charles IV.--Wenceslaus--Rupertian Reformation--Encroachments of the Fehm-courts--Case of Nickel Weller and the town of Gorlitz--Of the City of Dantzig--Of Hans David and the Teutonic Knights--Other instances of the presumption of the Free-counts--Citation of the Emperor Frederic III.--Case of the Count of Teckenburg.

The history of the Fehm-gerichte, previous to the fifteenth century, offers but few events to detain attention. The Emperor Lewis the Bavarian appears to have exerted his authority on several occasions in granting privileges in Westphalia according, as it is expressly stated, to the Fehm-law. His successor, the luxurious Charles IV., acted with the same caprice respecting the Fehm-tribunals as he did in every thing else, granting privileges and revoking them just as it seemed to accord with his interest at the moment. This monarch attempted also to extend the Fehm-system beyond Westphalia, deeming it perhaps a good mean for bringing all Germany under the authority of his patrimonial kingdom of Bohemia. He therefore gave permission to the Bishop of Hildesheim to erect two Free-tribunals out of Westphalia. On the representations of the Archbishop of Cologne and the lords of Westphalia, however, he afterwards abolished them.

Wenceslaus, the son of Charles, acted with his usual folly in the case of the Fehm-tribunals; he is said, as he could keep nothing secret, to have blabbed their private sign, and he took on him to make frei-schoppen, contrary to the law, out of Westphalia. These schoppen 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 schoppen, their reply was, "We ask them at what court they were made schoppen. Should it appear that they were made schoppen 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 schoppen. The reign of Wenceslaus is particularly distinguished by its being the period in which the Archbishop of Cologne arrived at the important office of lieutenant of the emperor over all the Westphalian tribunals.

The reign of Rupert was, with respect to the Westphalian Fehm-courts, chiefly remarkable by the reformation of them named from him. This reformation, which is the earliest publicly-accredited source from which a knowledge of the Fehm-law can be derived, was made in the year 1404.

It is a collection of decisions by which the rights and privileges of a king of the Romans are ascertained with respect to these tribunals.

The Rupertian reformation, and the establishment of the office of lieutenant in the person of the Archbishop of Cologne, which was completed by either Rupert or his successor Sigismund, form together an epoch in the history of the Fehm-gerichte. Hitherto Westphalia alone was the scene of their operations, and their authority was of evident advantage to the empire. Their power had now attained its zenith; confidence in their strength led them to abuse it; and, during the century which elapsed between the Rupertian reformation and the establishment of the Perpetual Public Peace and the Imperial Chamber by the Emperor Maximilian, we shall have to contemplate chiefly their abuses and a.s.sumptions.

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.