Mysteria

1. COURTS OF JUSTICE IN THE MIDDLE AGE.

The wild disorder attending the irruption of the Gothic nations having subsided, society, which had lost its bearings, had to organize itself anew. The first step toward this end was taken when society’s task was distributed among innumerable fractional parts of itself, each fraction trying to do its own share of the work; the next step was the uniting of all these fractional parts under one religious idea—that of Christianism, and under one political law—that of feudalism. The Pope and the Emperor represented the religious and the political ideas respectively. As long as one was true to Pope and Emperor—i.e., was a good Christian and a good subject—all was well with him, and he might, in all other matters, do as he pleased. The principle of Justice was not regarded: no wrong act was punished as violating right, but always as doing harm. Even murder was not regarded as infringement of human right to life, but simply as harm done to the people of the murdered one. If one was without relatives, his slayer went unpunished; but if the murdered man left a family or kinsmen, the murderer, on paying to them a certain sum, went forth free. Thus, the utmost unrestraint prevailed in the several small aggregations of people, and the utmost diversity between one little community and another. Of bureaucratic, centralized, cast-iron government there was no faintest foreshadow; nor was government a function assigned to any one, but, like the administration of justice, an acquired right. In a given province this one had acquired the government, that one the civil and a third the criminal judiciary; one was obeyed in peace, another commanded the people in war. Jurisdictions were undefined and inextricably mixed up—a consequence of the feudal system, under which the King granted rights now to one man, again to another, as favors, never inquiring how these might consist with rights previously granted to others. In this way it became possible in the Middle Age for such juristic abnormities as the Femgerichte to come into existence. The Femgerichte resulted from the confusion existing in judiciary affairs, just as the religious abnormity of the monastic orders of knights resulted from the very opposite condition of things in the Church—the excess of regulation. For the confusion (absence of regulation) and the excessive regulation were near akin; they both sprang out of the unrestraint of private life in the Middle Age, which unrestraint naturally produced, under the rule of the Church, a multitude of monastic rules (e.g., the Rule of St. Augustin, of St. Benedict, of St. Columba, etc.); while, on the contrary, the feebleness of the Empire, due to the jealousy of the Popes and the ambition and avarice of the feudal lords, was fatal to any organization of the administrative and judicial functions, and though there were many codes of law, there could be no standard for distinguishing right and wrong.

The cause of this difference of development between State and Church was, that the Church had grown from the top downward, from the hierarchy down to the people; while the State, on the contrary, had grown from below upward. During the process of migration and settlement, each nation or horde was self-governed, perfectly free and independent: hence, the popular, genial, oftentimes even jovial and humorous cast of Teutonic law, as compared with the hard, pedantic, abstruse, austere character of the Jus Romanum. Roman law has only a corpus juris; Teutonic law has Wise Saws, Juristic Proverbs, Juristic Drolleries, Juristic Myths (Weistuemer, Rechtssprichtwoerter, Rechtsschwoernke, Rechtssagen).

Originally, among the Germans, the freemen themselves were the court and chose their president, the Graf (graf now equals count). Not until the time of Karl the Great (Charlemagne) did the grafs become standing officials, and later an hereditary order and lords proprietary. As the functions of government were by degrees entrusted to fewer and ever fewer hands, being transferred from the people to favored feudal lords, and from them passing finally into the hands of an individual sovereign—a quite natural process, for while the people increased in number they did not become better educated, and therefore grew ever less fitted for self-government—so, too, judgment, quitting the open, embowered courts amid the lindens, with heaven’s breezes whispering among the leaves, and heaven’s blue dome overarching all, withdrew behind dank and frowning walls, from the countenance of the whole people to a meeting of a small bench of stern judges.

Thus gradually were the rights of the freemen diminished. The freemen was less and less frequently called to sit in judgment, for the president of the court, the graf, was no longer an equal, but a great lord, their superior, who made up the court as to him seemed best, and who even cared nothing for the Emperor.^[2]

Westphalia was the original home of the Femgerichte, and they owed their rise to the fact that there the royal ban (Koenigsbann), that is to say, the right possessed by the King alone, of conferring the grafship on the grafs, was still alive, in modified form indeed, yet with its substance unimpaired. Owing to the granting of various privileges to ecclesiastical and secular magnates the jurisdiction of the grafs was in time divided up. Besides, there were special courts for freemen, and special courts for the half-free and the unfree, the former courts being under the free grafs, and the other under the gaugrafafs (district grafs). Now, as the majority of the population were under the gaugrafs, the possession of a gaugrafship developed into sovereignty; while the position of the free grafs became peculiar: the office was often sold and passed from hand to hand. The free grafs, who were often persons of little means, in order to maintain their dignity, had to lean on the King’s ban, or warrant, obtainable from the King alone. But often the free grafships died out, or they were consolidated with gaugrafships. But nowhere did they retain so much of their original character as in Westphalia—a geographical expression of various meanings, indeed, but in general it denoted the region between the Rhine and the Weser. The term Freigraf dates from the twelfth century.

Not only the King but the duke also had influence over the free grafships. After the break-up of the ancient duchy of Saxony, every princely land proprietor within its territory was duke of Westphalia; this is specially true of the Archbishop of Cologne, and also of the bishops of Muenster, Osnabrueck and Minden, and of the Duke of Saxe-Lauenburg—dukes of Westphalia all, but with more or less limitation. Probably the duke was entitled to preside over any free court, and to summon to his own tribunal, the “botding,” the free grafs. So, too, the stuhlherr (lord of the manor) possessed the right of presiding, even when he was no prince, but only a graf; and often he assumed that the free graf gave judgment only in his (the lord’s) name, and so granted release from the jurisdiction of the free courts, to cities, for example. The free graf and his assessors, the schoeffen (a lower grade of judges), afterward called freischoeffen, constituted the freigericht (free court), afterward known as femgericht. These offices might fall to any freeman—and any one was reckoned a freeman who had “his own smoke,” i. e., a house of his own.

In the latter half of the 14th and the first half of the 15th century the emperors bestowed on the archbishops of Cologne, as dukes of Westphalia and lieutenants of the Emperor, the right of investiture of all free grafs and supervision of them all over Westphalia. A chapter of free grafs was held yearly at Arnsberg, and hence the Arnsberg tribunal obtained the first rank.

As the free grafs held their investiture from the king, they looked on themselves as king’s officers, and little by little went on extending their jurisdiction over the whole empire—a design favored by the confusion reigning everywhere, and even approved by the emperors themselves. At last the free grafs began to think that they were higher than the emperor, and had no need of his meddling: this arrogance was at its height in the reign of Sigmund, and it was still to be seen under Frederic VII.; in fact, Frederic, for having taken steps to punish some insubordinate free grafs, was summoned by free grafs to stand trial.

Some of the emperors did, indeed, set up free graf tribunals outside the limits of Westphalia; but these never prospered. In the 15th century it was an axiom that such courts could exist only in Westphalia, or, as the saying was, “on red earth,” a phrase that does not occur prior to 1490, and the sense of which is not quite clear; for neither is the soil of all Westphalia red, nor is red soil confined to Westphalia: and the same criticism may be made if “red earth” be taken for “blood-stained earth.”

2. THE SECRET TRIBUNAL.

The early “free courts” were in a certain sense “private” courts, inasmuch as they were not open to all like the courts of the gaugrafs (or judges of districts). The associate judges (Freischoeffen) were called “wissende” (wisemen, knowing ones), which, in old times, meant “judges.” The “private” tribunal of the Feme became by degrees a “secret” tribunal about the middle of the 14th century, as the free grafs became more conscious of their ambitious aims. The Schoeffen were now required to bind themselves by oath to observe secrecy: the one who proved false to his oath was first to have his tongue plucked out, and then he was to be hanged, either three or seven feet higher than a thief. The penalty was exacted very rarely, and probably never the first item of it. The obligation of secrecy extended over all the proceedings of the secret courts, even their letters and summonses. But the most important secret was the countersign, by means of which the initiated recognized each other. This was made up of four words (taken from the oath), Stock, Stein, Gras, Grein; and as the words were pronounced one laid his right hand on the others’ left shoulder. Poetry and romance have made the Feme courts sit in subterranean chambers, at night, the faces of the judges masked. The fact is that the tribunals of the Feme were set up at the ancient seats of the free tribunals, and of such places there were in Westphalia more than a hundred; and the trials were always held in the open air, in broad daylight. Whether in certain cases they were also public, so that any one might be present, is not known. In all cases where testimony was taken the proceedings were secret; whoever willingly or unwillingly was present unbidden at the secret deliberations was straightway hanged from the nearest tree.

Very remarkable was the universal recognition throughout Germany of the power of the Femgerichte. In 1387 the most distinguished people of Cologne were “wissende”; about 1420 the Rhineland was full of wissende belonging to every grade in society; and soon after the same might be said of Bavaria, Tyrol, Switzerland, Suabia, Franconia, Saxony, Prussia. Every manor lord and every free city needed the advice of wissende. Princes and cities had their judges admitted as schoeffen; archbishops and princes, even the Emperor Sigmund, were initiated: in the middle of the 15th century there must have been more than 100,000 freischoeffen in the empire. To be initiated became a craze, a fad; the native Westphalians were amazed at the folly of their southern and eastern countrymen.

And the long arm of the Femgericht jurisdiction reached as far as the host of wissende: the localities in which the activity of the secret tribunals was manifested were scattered all over the empire; in fact, the proceedings of these courts which affected Westphalia itself became a very small fraction of the whole.

But with the spread of the Feme jurisdiction arose opposition to the same. There were seen faint beginnings of opposition even in the early part of the 14th century, when Bremen decided not to allow members of the Feme courts to reside within its jurisdiction; toward the close of that century other cities took more effective measures, and in the 15th were even formed leagues of cities for self-defense against the encroachments of the Feme. Brunswick appealed to the Pope and the Emperor, and Hildesheim and Erfurt to the Council of Basel. In the middle of the 15th century several cities, especially in Southern Germany and in Holland, were freed from the jurisdiction of the secret courts by the supreme ecclesiastical and civil authorities. Then the dukes of Bavaria and of Saxony forbade their subjects laying complaints in the Westphalian courts, and some cities punished that offense with death, imprisonment, or banishment.

A Feme court consisted of a free graf and at least seven schoeffen. The graf was required to be a freeborn Westphalian of stainless reputation, whatever his station in life, for peasants were often chosen to be grafs. The schoeffen also had to be freemen born, and if not of Westphalian birth, were required to present proofs of their fitness. There was a fee for admission to the Feme. As time went on the examination of applicants became less and less strict, and often very questionable characters, even serfs and men accused of crimes, were admitted: such admissions were illegal, and the men chosen under such circumstances were called notschoeffen (makeshift schoeffen).

The free graf sat at a judgment-board, on which lay a naked sword and a rope as symbols of avenging justice, and the schoeffen took oath on these instruments. Each free graf and each schoeffe of a given court was required not only to be present at a trial, but to take part in pronouncing sentence. When the trial was one of special importance several hundred schoeffen would be in attendance.

The Femgerichte had their special codes and statutes, which were from time to time amended. In these the competence of the courts was defined, and this had to do with matters purely criminal, at least so far as the trials were held in secret. The crimes of which the Femgerichte took cognizance—vemewrogige punkte (points for femic animadversion)—were, according to the list drawn up at Dortmund in 1430, as follows: 1, robbery and acts of violence against ecclesiastics or churches; 2, larceny; 3, robbery of a woman in childbed or of a dying person; 4, plundering the dead; 5, arson and murder; 6, treachery; 7, betrayal of the Feme; 8, rape; 9, forgery of money or of title to property; 10, robbery on the imperial highway; 11, perjury and perfidy; 12, refusal to appear in court on summons. Apostasy from the Christian faith was put at the head of the list in an assembly held at Arnsberg 1437, and in 1490 heresy and witchcraft were added. For the person found guilty there was but one punishment, death, and only one manner of death, by the rope. This penalty could be inflicted without sentence if the offender were taken in the act, or if he confessed guilt, or if there were eyewitnesses of the crime.

That among the offenses punishable by the Feme heresy and witchcraft held almost the first place shows that these tribunals were no object of apprehension to the ecclesiastical power. This secret association, therefore, differed from that of the Templars, as also from that of the Stonemasons (which will be next considered) especially in this, that the Feme was no league of Illuminati, but that their specialty was opposition to the law of the stronger and to the rule of petty states, and that their aim was to uphold and exaggerate antiquated judicial institutions.

The procedure of the Femgerichte was entirely in accord with the principle of ancient Teutonic law, that “where no complainant appears, neither is there any judge.” It was not the inquisitorial court procedure of the 16th–19th centuries, in which the judge made investigation on his own account, but a procedure founded entirely in the practice of civil courts, and one that agreed well with the independent spirit of the Middle Age, and the view that then prevailed that law was a matter of personal rights.

The free tribunals took up the complaint from whatever quarter it came. All schoeffen, too, were under obligation to bring to the attention of the free courts, and to prosecute all doings coming under the animadversion of the Feme. Hence were a schoeffe to give information regarding such offenses to any other court, he was liable to be hanged; and the same fate befel the one who, having been entrusted with a bill of accusation, should open the same and betray its contents. Accusations were not entertained unless when submitted by wissende. The accuser had to stand betwixt two fellow schoeffen, his sponsors, in front of the tribunal in kneeling posture.

In every case the first thing done was to decide whether the crime was one meet for animadversion by the Feme. That decided, the accused was summoned to appear, if he was a wissender, before the secret tribunal, if not a wissender, before the open court. The first summons to a wissender to appear before the secret tribunal was drawn up in writing by two schoeffen, and allowed the accused a delay of six weeks and three days. If he did not obey the summons, then four schoeffen summoned him in person; and this proving ineffectual, six schoeffen and one free graf repeated the summons, which now was called the “warning.” The delay allowed was the same as at first. If the accused was a free graf the number of schoeffen employed in each of the three processes of summoning was 7, 14 and 21, respectively, and of free grafs 2, 4 and 7. The schoeffe, on receiving the summons, could appear at any time within the three delays before the free court and demand a statement of the charges and the names of the accusers; then he might on his sword swear to his innocence, and obtain his freedom; but he was liable to be summoned again. Outsiders were summoned once only, and usually by only one schoeffe. When the whereabouts of an accused person was unknown, four summonses were prepared, and these were posted in four places where he might possibly be found. If the accused was one who inspired fear, the summons might in the night time be posted or left at the gate of the castle or of the city in which he lived. In such cases the schoeffen walked or rode up before the gate, hacked off the crossbeam three chips, which they kept, put a penny of the realm in the notch, affixed the summons, and cried out to the castellan or the burgomaster, “We have stuck a king’s brief in the notch and taken the proof with us: say you to him that is in the castle that he must on his appointed day present himself before the free tribunal, on behalf of highest law and the Emperor’s ban.” When the opposition to the Femgerichte began to gain force, the summoners were in greater peril often than the summoned: often they lost their lives.

The day of the trial having arrived, if the accuser was not on hand the accused was discharged. But if the accused failed to appear, the accusation was repeated and testimony taken. The free graf then thrice called the accused by name, and asked if any one was there as his attorney. If there was no appearance of the accused, the accuser could demand judgment “after a se’ennight.” In making this demand, he knelt, laid two fingers of the right hand on his naked sword, affirmed the guilt of the accused, and six schoeffen, as his sponsors, maintained the truth of what he swore. If the verdict was against the accused, the free graf arose, and outlawed the accused, in words like these: “The accused (name and surname) I except from the peace, the laws and the freedom (of the empire) as the same have been stablished and decreed by popes and emperors; and I cast him down and place him in uttermost unquiet and disgrace, and make him illegitimate, banned, outside the peace, dishonored, insecure, loveless; and I do outlaw him according to the sentence of the secret tribunal, and devote his neck to the rope, his carcass to the birds and beasts to devour; and I commend his soul to the power of God in heaven; and his fiefs and goods I give up to the lords of whom the fiefs are held; and I make his wife a widow and his children orphans.” Then the free graf threw a twisted cord out over the bounds of the court, the schoeffen spat out, and the name of the outlaw was written in the book of the condemned. Among the persons thus condemned were numbered some men of high station, as the dukes Henry and Louis of Bavaria (1429), John, bishop of Wurtzburg, and others. All free grafs and schoeffen were henceforth under obligation to arrest and to execute sentence upon the outlaw (but three members of the Feme were required); and executing sentence meant hanging the culprit from the nearest tree. Often the relatives of executed outlaws of the Feme accused the executioners in the free courts as assassins, and the court could outlaw its own ministers for carrying out its own decrees. Many were the abuses that arose, assassination of innocent persons, for example. Murderers, too, pretended to be schoeffen; and highwaymen robbed under pretense of sequestering the property of persons condemned by judgment of the Feme.

If ever the condemned, being a wissender and not having overstayed the se’ennight of grace, appeared in court with six compurgators he was set free; but if he confessed his guilt, or was convicted, he was executed forthwith in the usual way. The ban of the Feme could never be lifted; but the number of death sentences actually carried out was, says Lindner, “so very small that one might readily allow the Feme’s decree of outlawry to be pronounced upon him.” Pope Nicolas V. in 1452 condemned the capital executions done by the Feme.

If a man under sentence of death should be proved innocent before he fell into the hands of the executioners, he was, if a wissender, brought before the court, with a rope around his neck, wearing white gloves, carrying a green cross, and attended by two schoeffen; falling on his knees before the free graf he pleaded for mercy. The free graf, taking him by the hand, bade him rise, removed the rope from around his neck, and restored him to the grace and favor of the Feme. But one who was not a wissender had no rights! He merely escaped death, but there was no amend. The Emperor gave him “a reprieve of 100 years, 6 weeks and a day”—that was all; he was forever ineligible to become a schoeffe. Both processes were called the “entfemung” (“unfeming,” undoing of the Feme’s judgment).

Many of the condemned, unable to procure the entfemung, ventured to appeal to the Emperor, the camera, the Pope, or a Church Council. But the Femgerichte never recognized such appeals, and protested strongly to the Emperor against them. They regarded the condemned as dead, and said that no one had the right “to awaken the dead.” The Emperor Sigmund could think of no means of saving a man under condemnation, except by taking him into his own service, for the Femgerichte did not care to take measures against officials of the Kaiser and the empire. Women, too, as well as aged men and children, were excepted from the cognizance of the Feme, also, in theory, Jews, for Jews were “servants of the Emperor’s bedchamber”; ecclesiastics, also, for they could in the Middle Age be tried only in the spiritual courts; but in the 15th century the Feme disregarded these provisions, and summoned both Jews and ecclesiastics.

3. THE END OF THE FEME.

But the Initiates of the Red Earth league met the fate that overtakes all movements that lag behind the times. The Feme did by no means render in the days of “faustrecht” (fist-right, the rule of the stronger) so great services as it has been credited with: never was the insecurity of life and property so great as when the Femgerichte were most flourishing. If the extension of the Feme beyond the borders of Westphalia was a wrong, that wrong became aggravated through the excessive secrecy of the tribunals. The Feme degenerated steadily, and the respect in which it was held declined in equal degree. The free grafs forgot the fair promise of their original institution—that their function was to protect innocence against the machinations of bad men. They, and especially the presidents of courts, enriched themselves with fees for admission of new members, with costs of court, with fines and fees, and even with moneys got by extortion and oppression. They delayed trials, condemned innocent persons, overstepped the limits of their jurisdiction so as to condemn to death the entire male population (over 18 years) of a town, for not obeying a summons. The opposition to the Femgerichte culminated in the decree of the Emperor Maximilian I. creating the supreme court of judicature (kammergericht), which left no further excuse for protecting the free courts. The applications for admission to the Feme soon grew less, and at last ceased. The princes changed the free courts into ordinary tribunals, or abolished them. At the end of the 16th century a capital execution by a Femgericht was a thing unknown; at the end of the 17th these courts had nearly all disappeared. But even when Westphalia was a Napoleonic kingdom there were still living some schoeffen, and not till the decade 1880–90 did the last free graf disappear, “taking with him to the grave the secret of the countersign.” The existence of the Feme is still commemorated by the stone judgment seats under the lindens; and the branches overhead are still whispering the story of the redoubtable Wissende of the Red Earth country.