Introduction--The Original Westphalia--Conquest of the Saxons by Charlemagne--His Regulations--Dukes of Saxony--State of Germany--Henry the Lion--His Outlawry--Consequences of it--Origin of German Towns--Origin of the Fehm-gerichte, or Secret Tribunals--Theories of their Origin--Origin of their Name--Synonymous Terms.
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
[paragraph continues] 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 *.
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 * 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 *.
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 Slaves, 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 tie 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 *?
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 *.
It remains, before proceeding to a description et 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 †, 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 *, 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 of 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 * 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.
332:* Dr. Berck has, in his elaborate work on this subject (Geschichte der Westphälischen Femgerichte, Bremen, 1815), collected, we believe, nearly all the information that is now attainable. This work has been our principal guide; for, though we have read some others, we cannot say that we have derived any important information from them. As the subject is in its historical form entirely new in English literature, we have, at the hazard of appearing occasionally dry, traced with some minuteness the construction and mode of procedure of these celebrated courts.
333:* The romantic accounts of the Secret Tribunals will be found in Sir W. Scott's translation of Goëthe's Götz von Berlichingen, and in his House of Aspen and Anne of Geierstein. From various passages in Sir W. Scott's biographical and other essays, it is plain that he believed such to be the true character of the Secret Tribunals.
335:* The Vends (Wenden) were a portion of the Slavonian race who dwelt along the south coast of the Baltic.
339:* Arnold of Lübeck, Chronica Slavorum, l. iii. c. l., apud Leibnitz Scriptores Rerum Brunsvicarum, t. ii. p. 653.
341:* Berck, pp. 259, 260.
343:* See Berck, l. i. c. 5, 6, 7.
343:† Spelt also Fem, Fäm, Vem, Vehm. In German f and v are pronounced alike, as also are ä and e. The words from which Fahm has been derived are Fahne, a standard; Femen, to skin; Fehde, feud; Vemi (i.e. væ mihi), wo is me; Ve or Vaem, which Dreyer says signifies, in the northern languages, p. 344 holy; Vitte (old German), prudence; Vette, punishment; the Fimmiha of the Salic law; Swedish Fem, Islandic Fimm, five, such being erroneously supposed to be the number of judges in a Fehm, or court. Finally, Mözer deduces it from Fahm, which he says is employed in Austria and some other countries for Rahm, cream.
344:* Common fame was a sufficient ground of arraignment in England, also, in the Anglo-Saxon period.
345:* In the northern languages, Ting; hence the Storc Ting (in our journals usually written Storthing), i.e. Great Ting, or Parliament of Norway.