Secret Societies of the Middle Ages

Portrait of last Grand Master.

It is mentioned as a tradition, by some historians, that Molay, ere he expired, summoned Clement to appear within forty days before the Supreme Judge, and Philip to the same tribunal within the space of a year. The pontiff actually did die of a cholic on the night of the 19th of the following month, and, the church in which his body was laid taking fire, the corpse was half consumed. The king, before the year had elapsed, died of a fall from his horse. Most probably it was these events which gave rise to the tradition, which testifies the general belief of the innocence of the Templars. It was also remarked that all the active persecutors of the order perished by premature or violent deaths.

It remains to discuss the two following points:—Did the religio-military order of the Knights Templars hold a secret doctrine subversive of religion and morality? Has the order been continued down to our own days?

We have seen what the evidence against the Templars was, and it is very plain that such evidence would not be admitted in any modern court of justice. It was either hearsay, or given by persons utterly unworthy of credit, or wrung from the accused by agony and torture. The articles themselves are absurd and contradictory. Are we to believe that the same men had adopted the pure deism of the Mahommedans, and were guilty of a species of idolatry[103] almost too gross for the lowest superstition? But when did this corruption commence among the Templars? Were those whom St. Bernard praised as models of Christian zeal and piety, and whom the whole Christian world admired and revered, engaged in a secret conspiracy against religion and government? Yes, boldly replies Hammer, the two humble and pious knights who founded the order were the pupils and secret allies of the Mahommedan Ismaelites. This was going too far for Wilike, and he thinks that the guilt of introducing the secret doctrine lies on the chaplains; for he could discern that the doctrines of gnosticism, which the Templars are supposed to have held, were beyond the comprehension of illiterate knights, who, though they could fight and pray, were but ill qualified to enter into the mazes of mystic metaphysics. According, therefore, to one party, the whole order was corrupt from top to bottom; according to another, the secrets were confined to a few, and, contrary to all analogy, the heads of the order were frequently in ignorance of them. Neither offer any thing like evidence in support of their assumption.

The real guilt of the Templars was their wealth and their pride[104]: the last alienated the people from them, the former excited the cupidity of the king of France. Far be it from us to maintain that the morals of the Templars were purer than those of the other religious orders. With such ample means as they possessed of indulging all their appetites and passions, it would be contrary to all experience to suppose that they always restrained them, and we will even concede that some of their members were obnoxious to charges of deism, impiety, breaches of their religious vows, and gross licentiousness. We only deny that such were the rules of the order. Had they not been so devoted as they were to the Holy See they would perhaps have come down to us as unsullied as the knights of St. John[105]; but they sided with Pope Boniface against Philip the Fair, and a subservient pontiff sacrificed to his own avarice and personal ambition the most devoted adherents of the court of Rome[106].

We make little doubt that any one who coolly and candidly considers the preceding account of the manner in which the order was suppressed will readily concede that the guilt of its members was anything but proved. It behoves their modern impugners to furnish some stronger proofs than any they have as yet brought forward. The chief adversary of the Templars at the present day is a writer whose veracity and love of justice are beyond suspicion, and who has earned for himself enduring fame by his labours in the field of oriental literature, but in whose mind, as his most partial friends must allow, learning and imagination are apt to overbalance judgment and philosophy[107]. He has been replied to by Raynouard, Münter, and other able advocates of the knights.

We now come to the question of the continuance of the order to the present day. That it has in some sort been transmitted to our times is a matter of no doubt; for, as we have just seen, the king of Portugal formed the Order of Christ out of the Templars in his dominions. But our readers are no doubt aware that the freemasons assert a connexion with the Templars, and that there is a society calling themselves Templars, whose chief seat is at Paris, and whose branches extend into England and other countries. The account which they give of themselves is as follows:—

James de Molay, in the year 1314, in anticipation of his speedy martyrdom, appointed Johannes Marcus Lormenius to be his successor in his dignity. This appointment was made by a regular well-authenticated charter, bearing the signatures of the various chiefs of the order, and it is still preserved at Paris, together with the statutes, archives, banners, &c., of the soldiery of the Temple. There has been an unbroken succession of grand-masters down to the present times, among whom are to be found some of the most illustrious names in France. Bertrand du Guesclin was grand-master for a number of years; the dignity was sustained by several of the Montmorencies; and during the last century the heads of the society were princes of the different branches of the house of Bourbon. Bernard Raymond Fabré Palaprat is its head at present, at least was so a few years ago[108].

This is no doubt a very plausible circumstantial account; but, on applying the Ithuriel spear of criticism to it, various ugly shapes resembling falsehood start up. Thus Molay, we are told, appointed his successor in 1314. He was put to death on the 18th March of that year, and the order had been abolished nearly a year before. Why then did he delay so long, and why was he become so apprehensive of martyrdom at that time, especially when, as is well known, there was then no intention of putting him to death? Again, where were the chiefs of the society at that time? How many of them were living? and how could they manage to assemble in the dungeon of Molay and execute a formal instrument! Moreover, was it not repugnant to the rules and customs of the Templars for a Master to appoint his successor? These are a few of the objections which we think may be justly made; and, on the whole, we feel strongly disposed to reject the whole story.

As to the freemasons, we incline to think that it was the accidental circumstance of the name of the Templars which has led them to claim a descent from that order; and it is possible that, if the same fate had fallen on the knights of St. John, the claim had never been set up. We are very far from denying that at the time of the suppression of the order of the Temple there was a secret doctrine in existence, and that the overthrow of the papal power, with its idolatry, superstition, and impiety, was the object aimed at by those who held it, and that freemasonry may possibly be that doctrine under another name[109]. But we are perfectly convinced that no proof of any weight has been given of the Templars' participation in that doctrine, and that all probability is on the other side. We regard them, in fine, whatever their sins may have been, as martyrs—martyrs to the cupidity, blood-thirstiness, and ambition of the king of France.

THE SECRET TRIBUNALS OF WESTPHALIA[110].

Chapter I.

We are now arrived at an association remarkable in itself, but which has been, by the magic arts of romancers, especially of the great archimage of the north, enveloped in darkness, mystery, and awe, far beyond the degree in which such a poetical investiture can be bestowed upon it by the calm inquirer after truth. The gloom of midnight will rise to the mind of many a reader at the name of the Secret Tribunals of Westphalia: a dimly lighted cavern beneath the walls of some castle, or peradventure Swiss hostelrie, wherein sit black-robed judges in solemn silence, will be present to his imagination, and he is prepared with breathless anxiety to peruse the details of deeds without a name[111].

We fear that we cannot promise the full gratification of these high-wrought expectations. Extraordinary as the Secret Tribunals really were, we can only view them as an instance of that compensating principle which may be discerned in the moral as well as in the natural empire of the Deity; for, during the most turbulent and lawless period of the history of Germany, almost the sole check on crime, in a large portion of that country, was the salutary terror of these Fehm-Gerichte, or Secret Tribunals. And those readers who have taken their notions of them only from works of fiction will learn with surprise that no courts of justice at the time exceeded, or perhaps we might say equalled, them in the equity of their proceedings.

Unfortunately their history is involved in much obscurity, and we cannot, as in the case of the two preceding societies, clearly trace this association from its first formation to the time when it became evanescent and faded from the view. While it flourished, the dread and the fear of it weighed too heavily on the minds of men to allow them to venture to pry into its mysteries. Certain and instantaneous death was the portion of the stranger who was seen at any place where a tribunal was sitting, or who dared so much as to look into the books which contained the laws and ordinances of the society. Death was also the portion of any member of the society who revealed its secrets; and so strongly did this terror, or a principle of honour, operate, that, as Æneas Sylvius (afterwards Pope Pius II.), the secretary of the Emperor Frederick III., assures us, though the number of the members usually exceeded 100,000, no motive had ever induced a single one to be faithless to his trust. Still, however, sufficient materials are to be found for satisfying all reasonable curiosity on the subject.

To ascertain the exact and legal sphere of the operation of this formidable jurisdiction, and to point out its most probable origin, are necessary preliminaries to an account of its constitution and its proceedings. We shall therefore commence with the consideration of these points.

Westphalia, then, was the birth-place of this institution, and over Westphalia alone did it exercise authority. But the Westphalia of the middle ages did not exactly correspond with that of the later times. In a general sense it comprehended the country between the Rhine and the Weser; its southern boundary was the mountains of Hesse; its northern, the district of Friesland, which at that time extended from Holland to Sleswig. In the records and law-books of the middle ages, this land bears the mystic appellation of the red earth, a name derived, as one writer thinks, from the gules, or red, which was the colour of the field in the ducal shield of Saxony; another regards it as synonymous with the bloody earth; and a third hints that it may owe its origin to the red colour of the soil in some districts of Westphalia.

This land formed a large portion of the country of the Saxons, who, after a gallant resistance of thirty years, were forced to submit to the sway of Charlemagne, and to embrace the religion of their conqueror. The Saxons had hitherto lived in a state of rude independence, and their dukes and princes possessed little or no civil power, being merely the presidents in their assemblies and their leaders in war. Charlemagne thought it advisable to abolish this dignity altogether, and he extended to the country of the Saxons the French system of counts and counties. Each count was merely a royal officer who exercised in the district over which he was placed the civil and military authority. The missi dominici or regii were despatched from the court to hold their visitations in Saxony, as well as in the other dominions of Charles, and at these persons of all classes might appear and prefer their complaints to the representative of the king, if they thought themselves aggrieved by the count or any of the inferior officers.

In the reign of Louis the German, the excellent institutions of Charlemagne had begun to fall into desuetude; anarchy and violence had greatly increased. The incursions of the Northmen had become most formidable, and the Vends[112] also gave great disturbance to Germany. The Saxon land being the part most immediately exposed to invasion, the emperor resolved to revive the ancient dignity of dukes, and to place the district under one head, who might direct the energies of the whole people against the invaders. The duke was a royal lieutenant, like the counts, only differing from them in the extent of the district over which he exercised authority. The first duke of Saxony was Count Ludolf, the founder of Gandersheim; on his death the dignity was conferred on his son Bruno, who, being slain in the bloody battle of Ebsdorf fought against the Northmen, was succeeded by his younger brother Otto, the father of Henry the Fowler.

On the failure of the German branch of the Carlovingians, the different nations which composed the Germanic body appointed Conrad the Franconian to be their supreme head; for a new enemy, the Magyars, or Hungarians, now harassed the empire, and energy was demanded from its chief. Of this Conrad himself was so convinced, that, when dying, after a short reign, he recommended to the choice of the electors, not his own brother, but Henry the Fowler, Duke of Saxony, who had, in his conflicts with the Vends and the Northmen, given the strongest proofs of his talents and valour. Henry was chosen, and the measures adopted by him during his reign, and the defeat of the Hungarians, justified the act of his elevation.

On the death of Henry, his son Otto, afterwards justly styled the Great, was unanimously chosen to succeed him in the imperial dignity. Otto conferred the Duchy of Saxony on Herman Billung. From their constant warfare with the Vends and the Northmen, the Saxons were now esteemed the most valiant nation in Germany, and they were naturally the most favoured by the emperors of the house of Saxony. This line ending with Henry II. in 1024, the sceptre passed to that of Franconia, under which and the succeeding line of Suabia, owing to the contests with the popes about investitures and to various other causes, the imperial power greatly declined in Germany; anarchy and feuds prevailed to an alarming extent; the castles of the nobles became dens of robbers; and law and justice were nowhere to be found.

The most remarkable event of this disastrous period, and one closely connected with our subject, is the outlawry of Henry the Lion, Duke of Saxony and Bavaria. Magnus, the last of the Billungs of Saxony, died, leaving only two daughters, of whom the eldest was married to Henry the Black, Duke of Bavaria, who consequently had, according to the maxims of that age, a right to the Duchy of Saxony; but the Emperor Henry V. refused to admit his claim, and conferred it on Lothaire of Supplinburg. As, however, Henry the Black's son, Henry the Proud, was married to the only daughter of Lothaire, and this prince succeeded Henry V. in the empire, Henry found no difficulty in obtaining the Duchy of Saxony from his father-in-law, who also endeavoured to have him chosen his successor in the imperial dignity. But the other princes were jealous of him, and on the death of Lothaire they hastily elected Conrad of Suabia, who, under the pretext that no duke should possess two duchies, called on Henry to resign either Saxony or Bavaria. On his refusal, Conrad, in conjunction with the princes of the empire, pronounced them both forfeited, and conferred Bavaria on the Margraf of Austria, and Saxony on Albert the Bear, the son of the second daughter of Duke Magnus of Saxony.

Saxony was, however, afterwards restored by Conrad to Henry the Lion, son of Henry the Proud, and Conrad's successor, Frederick Barbarossa, gave him again Bavaria. Henry had himself carried his arms from the Elbe to the Baltic, and conquered a considerable territory from the Vends, which he regarded as his own peculiar principality. He was now master of the greater part of Germany, and it was quite evident that he must either obtain the imperial dignity or fall. His pride and his severity made him many enemies; but as he had no child but a daughter, who was married to a cousin of the emperor, his power was regarded without much apprehension. It was, however, the ambition of Henry to be the father of a race of heroes, and, after the fashion of those times, he divorced his wife and espoused Matilda, daughter of Henry II. of England, by whom he had four sons. Owing to this and other circumstances all friendly feeling ceased between Henry and the emperor, whom, however, he accompanied on the expedition to Italy, which terminated in the battle of Legnano. But he suddenly drew off his forces and quitted the imperial army on the way, and Frederick, imputing the ill success which he met with in a great measure to the conduct of the Duke of Saxony, was, on his return to Germany, in a mood to lend a ready ear to any charges against him. These did not fail soon to pour in: the Saxon clergy, over whom he had arrogated a right of investiture, appeared as his principal accusers. Their charges, which were partly true, partly false, were listened to by Frederick and the princes of the empire, and the downfall of Henry was resolved upon. He was thrice summoned, but in vain, to appear and answer the charges made against him. He was summoned a fourth time, but to as little purpose; the sentence of outlawry was then formally pronounced at Würtzburg. He denied the legality of the sentence, and attempted to oppose its execution; several counts stood by him in his resistance; but he was forced to submit and sue for grace at Erfurt. The emperor pardoned him and permitted him to retain his allodial property on condition of his leaving Germany for three years. He was deprived of all his imperial fiefs, which were immediately bestowed upon others.

In the division of the spoil of Henry the Lion Saxony was cut up into pieces; a large portion of it went to the Archbishop of Cologne; and Bernhard of Anhalt, son of Albert the Bear, obtained a considerable part of the remainder; the supremacy over Holstein, Mecklenburg, and Pomerania, ceased; and Lübeck became a free imperial city. All the archbishops, bishops, counts, and barons, seized as much as they could, and became immediate vassals of the empire. Neither Bernhard nor the Archbishop of Cologne was able completely to establish his power over the portion assigned him, and lawless violence everywhere prevailed. "There was no king in Israel, and every one did that which was right in his own eyes," is the language of the Chronicler[113].

We here again meet an instance of the compensatory principle which prevails in the arrangements of Providence. It was the period of turbulence and anarchy succeeding the outlawry of Henry the Lion which gave an impulse to the building or enlarging of towns in the north of Germany. The free Germans, as described by Tacitus, scorned to be pent up within walls and ditches; and their descendants in Saxony would seem to have inherited their sentiments, for there were no towns in that country till the time of Henry the Fowler. As a security against the Northmen, the Slavs, and the Magyars, this monarch caused pieces of land to be enclosed by earthen walls and ditches, within which was collected a third part of the produce of the surrounding country, and in which he made every ninth man of the population fix his residence. The courts of justice were held in these places to give them consequence; and, their strength augmenting with their population, they became towns capable of resisting the attacks of the enemy, and of giving shelter and defence to the people of the open country. Other towns, such as Münster, Osnabrück (Osnaburgh), Paderborn, and Minden, grew up gradually, from the desire of the people to dwell close to abbeys, churches, and episcopal residences, whence they might obtain succour in time of temporal or spiritual need, and derive protection from the reverence shown to the church. A third class of towns owed their origin to the stormy period of which we now write; for the people of the open country, the victims of oppression and tyranny, fled to where they might, in return for their obedience, meet with some degree of protection, and erected their houses at the foot of the castle of some powerful nobleman. These towns gradually increased in power, with the favour of the emperors, who, like other monarchs, viewing in them allies against the excessive power of the church and the nobility, gladly bestowed on them extensive privileges; and from these originated the celebrated Hanseatic League, to which almost every town of any importance in Westphalia belonged, either mediately or immediately.

But the growth of cities, and the prosperity and the better system of social regulation which they presented, were not the only beneficial effects which resulted from the overthrow of the power of Henry the Lion. There is every reason to conclude that it was at this period that the Fehm-gerichte, or Secret Tribunals, were instituted in Westphalia; at least, the earliest document in which there is any clear and express mention of them is dated in the year 1267. This is an instrument by which Engelbert, Count of the Mark, frees one Gervin of Kinkenrode from the feudal obligations for his inheritance of Broke, which was in the county of Mark; and it is declared to have been executed at a place named Berle, the court being presided over by Bernhard of Henedorp, and the Fehmenotes being present. By the Fehmenotes were at all times understood the initiated in the secrets of the Westphalian tribunals; so that we have here a clear and decisive proof of the existence of these tribunals at that time. In another document, dated 1280, the Fehmenotes again appear as witnesses, and after this time the mention of them becomes frequent.

We thus find that, in little more than half a century after the outlawry of Henry the Lion, the Fehm-gerichte were in operation in Westphalia; and there is not the slightest allusion to them before that date, or any proof, at all convincing, to be produced in favour of their having been an earlier institution. Are we not, therefore, justified in adopting the opinion of those who place their origin in the first half of the thirteenth century, and ascribe it to the anarchy and confusion consequent on the removal of the power which had hitherto kept within bounds the excesses of the nobles and the people? And is it a conjecture altogether devoid of probability that some courageous and upright men may have formed a secret determination to apply a violent remedy to the intolerable evils which afflicted the country, and to have adopted those expedients for preserving the public peace, out of which gradually grew the Secret Tribunals? or that some powerful prince of the country, acting from purely selfish motives, devised the plan of the society, and appointed his judges to make the first essay of it[114]?

Still it must be confessed that the origin of the Fehm-gerichte is involved in the same degree of obscurity which hangs over that of the Hanseatic league and so many other institutions of the middle ages; and little hopes can be entertained of this obscurity ever being totally dispelled. Conjecture will, therefore, ever have free scope of the subject; and the opinion which we have just expressed ourselves as inclined to adopt is only one of nine which have been already advanced on it. Four of these carry back the origin of the Fehm-gerichte to the time of Charlemagne, making them to have been either directly instituted by that great prince, or to have gradually grown out of some of his other institutions for the better governing of his states. A fifth places their origin in the latter half of the eleventh century, and regards them as an invention of the Westphalian clergy for forwarding the views of the popes in their attempt to arrive at dominion over all temporal princes. A sixth ascribes the institution to St. Engelbert, Archbishop of Cologne, to whom the Emperor Frederic II. committed the administration of affairs in Germany during his own absence in Sicily, and who was distinguished for his zeal in the persecution of heretics. He modelled it, the advocates of this opinion say, on that of the Inquisition, which had lately been established. The seventh and eighth theories are undeserving of notice. On the others we shall make a few remarks.

The first writers who mention the Fehm-gerichte are Henry of Hervorden, a Dominican, who wrote against them in the reign of the Emperor Charles IV., about the middle of the fourteenth century; and Æneas Sylvius, the secretary of Frederic III., a century later. These writers are among those who refer the origin of the Fehm-gerichte to Charlemagne, and such was evidently the current opinion of the time—an opinion studiously disseminated by the members of the society, who sought to give it consequence in the eyes of the emperor and people, by associating it with the memory of the illustrious monarch of the West. There is, however, neither external testimony nor internal probability to support that opinion. Eginhart, the secretary and biographer of Charlemagne, and all the other contemporary writers, are silent on the subject; the valuable fragments of the ancient Saxon laws collected in the twelfth century make not the slightest allusion to these courts; and, in fine, their spirit and mode of procedure are utterly at variance with the Carlovingian institutions. As to the hypothesis which makes Archbishop Engelbert the author of the Fehm-gerichte, it is entirely unsupported by external evidence, and has nothing in its favour but the coincidence, in point of time, of Engelbert's administration with the first account which we have of this jurisdiction, and the similarity which it bore in the secrecy of its proceedings to that of the Holy Inquisition—a resemblance easy to be accounted for, without any necessity for having recourse to the supposition of the one being borrowed from the other.

We can therefore only say with certainty that, in the middle of the thirteenth century, the Fehm-gerichte were existing and in operation in the country which we have described as the Westphalia of the middle ages. To this we may add that this jurisdiction extended over the whole of that country, and was originally confined to it, all the courts in other parts of Germany, which bore a resemblance to the Westphalian Fehm-gerichte, being of a different character and nature[115].

It remains, before proceeding to a description of these tribunals, to give some account of the origin of their name. And here again we find ourselves involved in as much difficulty and uncertainty as when inquiring into the origin of the society itself.

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 instituted 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.

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-stühle, stühl 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, instituted 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.

Chapter II.

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 investiture, 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.

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-schöppe 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 assessors or (Schöppen)[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.

These schöppen were divided into two classes, the knightly, and the simple, respectable assessors; 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 schöppen 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 schöppe was attended with a good deal of ceremony. He appeared bare-headed before the assembled 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 pronounced 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 God 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 nobles 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 association, and we are assured 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 assessors 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 assessors; 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 Æneas Sylvius, who wrote at the time when the society had degenerated, assures 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 assessors, 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 schöppen. 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].

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 nobility, 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 sex 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 nobility 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 assessors of equal rank with accused persons of that class.

In their original constitution 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 space and expansion. Thus at Nordkirchen and Südkirchen (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 documents. It is much more analogous 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 schöppen 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 schöppen, 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 circumstances, 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 entitle 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 asserts, that, in case of a person being taken flagranti delicto, birth formed no exemption, and the noble 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 circumstances 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, nobles, 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.

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 entitled 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 associated 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 assumed 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 institution 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 associates 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 pass 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 schöppen 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.

Chapter III.

For a good and legal service it was requisite that two schöppen 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 schöppen 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 schöppen, 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 schöppen.

The noth-schöppe, that is, the person who had surreptitiously 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 noble, when in his own strong castle, and surrounded by his dependents, might not scruple to inflict summary chastisement 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 schöppen 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 schöppe 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 circumstance which sometimes occurred. But should he not appear to the first summons, he was fined the first time thirty shillings, 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 passing this last severe sentence. This term of grace was called the King's Dag, or the Emperor Charles's Day of Grace.

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 God (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 God 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 God is appeased. On his right and left stood the clerks of the court, the assessors, 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 pass unrighteous judgment, for drunkenness causes much wickedness.

If one who was not initiated was detected in the assembly, 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-schöppe be caught in the assembly, 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 assessors 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-schöppen.

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-schöppen to swear that they believed him to have spoken the truth.

The older Fehm-law made a great distinction between the initiated and the ignorant, and one very much to the advantage of the former. The accused, if initiated, was allowed to clear himself from the charge by laying his two fore-fingers on the naked sword, and swearing by the saints "that he was innocent of the things and the deed which the court had mentioned to him, and which the accuser charged him with, so help him God and all the saints." He then threw a cross-penny (Kreutzer?) to the court and went his way, no one being permitted to let or hinder him. But if he was one of the uninitiated, he was not permitted to clear himself in this manner, and the truth of the fact was determined by the evidence given.

It is plain, however, that such a regulation as this could properly only belong to the time when none but persons of irreproachable character were initiated. As the institution degenerated, this distinction was gradually lost sight of, and facts were determined by evidence without any regard to the rank of the accused.

The accuser could prevent the accused from clearing himself thus easily, by offering himself and six compurgators to swear to the truth of his charge. If the accused wanted to outweigh this evidence, he was obliged to come forward with thirteen or twenty compurgators and swear to his innocence. If he could bring the last number he was acquitted, for the law did not allow it to be exceeded; but if he had but thirteen, the accuser might then overpower him by bringing forward twenty to vouch for his veracity.