Part 20 (1/2)
CHAPTER III.
Accusatorial process--Persons liable to it--Mode of citation--Mode of procedure--Right of appeal.
As we have stated above, the first inquiry when a matter was brought before a Fehm-court was, did it come within its jurisdiction, and, on its being found to do so, the accused was summoned before the Public Court, and when he did not appear, or could not clear himself, the cause was transferred to the Secret Court. We shall now consider the whole procedure specially.
The summons was at the expense of the accuser; it was to be written on good new parchment, without any erasures, and sealed with at least seven seals, to wit, those of the count and of six a.s.sessors. The seals of the different courts were different. The summonses varied according to whether the accused was a free-count, a free-schoppe, or one of the ignorant and uninitiated, a community, a noth-schoppe, or a mere vagabond. In all cases they were to be served by schoppen. They were to have on them the name of the count, of the accuser, and of the accused, the charge, and the place where the court was to be holden. The stuhlherr was also to be previously informed of it.
For a good and legal service it was requisite that two schoppen should either serve the accused personally or leave the summons openly or clandestinely at his residence, or at the place where he had taken refuge. If he did not appear to answer the charge within six weeks and three days, he was again summoned by four persons. Six weeks was the least term set for appearing to this summons, and it was requisite that a piece of imperial coin should be given with it. Should he still neglect appearing, he was summoned for the third and last time by six schoppen and a count, and the term set was six weeks and three days as before.
If the accused was not merely initiated but also a count, he was treated with corresponding respect. The first summons was served by seven schoppen, the second by fourteen and four counts, and the third by twenty-one and six counts.
The uninitiated, whether bond or free, did not share in the preceding advantages. The summons was served on themselves, or at their residence, by a messenger, and only once. There is some doubt as to the period set for their appearance, but it seems to have been in general the ordinary one of six weeks and three days.
The summons of a town or community was usually addressed to all the male inhabitants. In general some of them were specially named in it; the Arensberg Reformation directed that the names of at least thirty persons should be inserted. The term was six weeks and three days, and those who served the summons were required to be _true and upright_ schoppen.
The noth-schoppe, that is, the person who had surrept.i.tiously become possessed of the secrets of the society, was summoned but once. The usual time was allowed him for appearing to the charge.
Should the accused be a mere vagabond, one who had no fixed residence, the course adopted was to send, six weeks and three days before the day the court was to sit, and post up four summonses at a cross-road which faced the four cardinal points, placing a piece of imperial money with each. This was esteemed good and valid service, and if the accused did not appear the court proceeded to act upon it.
Notwithstanding the privileges which the members of the society enjoyed, and the precautions which were employed to ensure their safety, and moreover the deadly vengeance likely to be taken on any one who should aggrieve them, we are not to suppose the service of a summons to appear before a Fehm-court to have been absolutely free from danger. The tyrannic and self-willed n.o.ble, when in his own strong castle, and surrounded by his dependents, might not scruple to inflict summary chastis.e.m.e.nt on the audacious men who presumed to summon him to answer for his crimes before a tribunal; the magistrates of a town also might indignantly spurn at the citation to appear before a Fehm-court, and treat its messengers as offenders. To provide against these cases it was determined that it should be considered good service when the summons was affixed by night to the gate of a town or castle, to the door of the house of the accused, or to the nearest alms-house. The schoppen employed were then to desire the watchman, or some person who was going by, to inform the accused of the summons being there, and they were to take away with them a chip cut from the gate or door, as a proof of the service for the court.
If the accused was resolved to obey the summons, he had only to repair on the appointed day to the place where the court was to be held, the summons being his protection. Those who would persuade us that the Fehm-courts were held by night in secret places say that the mode appointed for the accused to meet the court was for him to repair three-quarters of an hour before midnight to the next cross-roads, where a schoppe was always waiting for him, who bound his eyes and led him to where the court was sitting. This, however, is all mere fiction; for the place where the court was to be held was expressly mentioned in every summons.
The Fehm-courts (like the German courts in general) were holden on a Tuesday[125]. If on this day the accused, or his attorney, appeared at the appointed place, and no court was holden, the summons abated or lost its force; the same was the case when admission was refused to him and his suite, a circ.u.mstance which sometimes occurred. But should he not appear to the first summons, he was fined the first time thirty s.h.i.+llings, the second time sixty, the third time he was _forfehmed_. The court had however the power of granting a further respite of six weeks and three days previous to pa.s.sing this last severe sentence. This term of grace was called the King's Dag, or the Emperor Charles's Day of Grace.
[Footnote 125: In German, _Dienstag_, probably _Dinstag_, i.e.
_Court-day_.]
The plea of necessary and unavoidable absence was, however, admitted in all cases, and the Fehm-law distinctly recognised four legal impediments to appearance, namely, imprisonment, sickness, the service of G.o.d (that is, pilgrimage), and the public service. The law also justly added the following cases:--inability to cross a river for want of a bridge or a boat, or on account of a storm; the loss of his horse when the accused was riding to the court, so that he could not arrive in time; absence from the country on knightly, mercantile, or other honest occasions; and lastly, the service of his lord or master. In short, any just excuse was admitted. As long as the impediment continued in operation all proceedings against the accused were void. If the impediment arose from his being in prison, or in the public service, or that of his master, he was to notify the same by letter sealed with his seal, or else by his own oath and those of two or three other persons. The other impediments above enumerated were to be sworn to by himself alone.
If the accused neglected answering the two first summonses, but appeared to the third, he was required to pay the two fines for non-appearance; but if he declared himself too poor to pay them, he was obliged to place his two fore-fingers on the naked sword which lay before the court, and swear, _by the death which G.o.d endured on the cross_, that such was the case. It was then remitted to him, and the court proceeded to his trial.
When a Fehm-court sat the count presided; before him lay on the table a naked sword and a withy-halter; the former, says the law, signifying the cross on which Christ suffered and the rigour of the court, the latter denoting the punishment of evil-doers, whereby the wrath of G.o.d is appeased. On his right and left stood the clerks of the court, the a.s.sessors, and the audience. All were bare-headed, to signify, says the law, that they would proceed openly and fairly, punish men only for the crimes which they had committed, and _cover no right with unright_. They were also to have their hands uncovered to signify that they would do nothing covertly and underhand. They were to have short cloaks on their shoulders, significatory of the warm love which they should have for justice; _for as the cloak covers all the other clothes and the body, so should their love cover justice_. They were to wear neither weapons nor harness, that no one might feel any fear of them, and to indicate that they were under the peace of the emperor, king, or empire. Finally, they were to be free from wrath and sober, that drunkenness might not lead them to pa.s.s unrighteous judgment, _for drunkenness causes much wickedness_.
If one who was not initiated was detected in the a.s.sembly, his process was a brief one. He was seized without any ceremony, his hands and feet were tied together, and he was hung on the next tree. Should a noth-schoppe be caught in the a.s.sembly, a halter of oaken twigs was put about his neck, and he was thrown for nine days into a dark dungeon, at the end of which time he was brought to trial, and, if he failed in clearing himself, he was proceeded with according to law, that is, was hanged.
The business of the day commenced, as in German courts in general, by the count asking of the messengers if it was the day and time for holding a court under the royal authority. An affirmative answer being given, the count then asked how many a.s.sessors should there be on the tribunal, and how the seat should be filled. When these questions were answered, he proclaimed the holding of the court.
Each party was permitted to bring with him as many as thirty friends to act as witnesses and compurgators. Lest, however, they might attempt to impede the course of justice, they were required to appear unarmed. Each party had, moreover, the right of being represented by his attorney. The person so employed must be initiated; he must also be the peer of the party, and if he had been engaged on either side he could not, during any stage of the action, be employed on the other, even with the permission of the party which had just engaged him. When he presented himself before the court, his credentials were carefully examined, and if found strictly conformable to what the law had enjoined, they were declared valid. It was necessary that they should have been written on good, new, and sound parchment, without blot or erasure, and be sealed by the seals of at least two frei-schoppen.
The attorney of a prince of the empire appeared with a green cross in his right hand, and a golden penny of the empire in his left. He was also to have a glove on his right hand. If there were two attorneys, they were both to bear crosses and pence. The attorney of a simple prince bore a silver penny. The old law, which loves to give a reason for every thing, says, ”By the cross they intimate that the prince whom they represent will, in case he should be found guilty, amend his conduct according to the direction of the faith which Jesus Christ preached, and be constant and true to the holy Christian faith, and obedient to the holy empire and justice.”
All the preliminaries being arranged, the trial commenced by the charge against him being made known to the accused, who was called upon for his defence. If he did not wish to defend himself in person, he was permitted to employ an advocate whom he might have brought with him. If it was a civil suit, he might, however, stay the proceedings at once by giving good security for his satisfying the claims of the plaintiff, in which case he was allowed the usual grace of six weeks and three days.
He might also except to the competence of the court, or to the legality of the summons, or to anything else which would, if defective, annul the proceedings.
If the accused did not appear, the regular course was for the prosecutor to _overswear_ him; that is, himself to swear by the saints to the truth of what he had stated, and six true and genuine frei-schoppen to swear that they believed him to have spoken the truth.