Part 19 (1/2)
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 s.h.i.+nes 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.