Accusatorial process--Persons liable to it--Mode of citation--Mode of procedure--Right of appeal.
As we have stated above, the first inquiry when a matter was brought before a Fehm-court was, did it come within its jurisdiction, and, on its being found to do so, the accused was summoned before the Public Court, and when he did not appear, or could not clear himself, the cause was transferred to the Secret Court. We shall now consider the whole procedure specially.
The summons was at the expense of the accuser; it was to be written on good new parchment, without any erasures, and sealed with at least seven seals, to wit, those of the count and of six assessors. The seals of the different courts were different. The summonses varied according to whether the accused was a free-count, a free-schöppe, or one of the ignorant and uninitiated, a community, a noth-schöppe, or a mere vagabond. In all cases they were to be served by schöppen. They were to have on them the name of the count, of the accuser, and of the accused, the charge, and the place where the court was to be holden. The stuhlherr was also to be previously informed of it.
For a good and legal service it was requisite that. two schöppen should either serve the accused personally or leave the summons openly or clandestinely at his residence, or at the place where he had taker refuge. If he did not appear to answer the charm
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 *. 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 o f 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.
If the accuser had convicted the accused, he forthwith prayed the count to grant him a just sentence. The count never took on himself the office of finding the verdict; he always directed one of the assessors to perform it. If the assessor thought the matter too difficult for his judgment, he averred on oath that such was the case, and the court then gave the duty to another, who might free himself from the responsibility in the same manner. Should none of the
assessors be able to come to a decision, the matter was put off till the next court-day.
But if the assessor undertook the finding of the verdict, it lay with himself whether he should do so alone, or retire to take the opinion of the other assessors and the by-standers. To give the verdict due force it must be found sitting, otherwise it might be objected to. Whether or not the assessor was bound to decide according to the majority of voices is uncertain. When the verdict had been found the assessor appeared with his colleagues before the tribunal, and delivered it to the count, who then passed sentence. What the penalties were for different offences was a secret known only to the initiated; but, if they were of a capital nature, the halter, as was intimated by the one which lay before the count, was the instrument of punishment.
Should the accused not have appeared, and been in consequence outlawed, he was forfehmed by the following awful curse: it was declared that "he should be excluded from the public peace, from all liberties and rights, and the highest un-peace, un-grace, and halter be appointed for him; that he should be cut off from all communication with any Christian people, and be cursed so that he might wither in his body, and neither become any more verdant, nor increase in any manner; that his wife should be held to be a widow, and his children orphans; that he should be without honour and without right, and given up to any one; that his neck should be left to the ravens, his body to all beasts, to the birds of the air and the fishes in the water; but his soul should be commended to God," &c. &c.
If he continued a year and a day under the sentence of outlawry, all his goods then fell to the
emperor or king. A prince, town, or community, that incurred the sentence of outlawry, lost thereby at once all liberties, privileges, and graces.
Should the sentence passed be a capital one, the count flung the halter over his head out of the in-closure of the tribunal, the schöppen spat on it, and the name of the condemned was entered in the blood-book. If the criminal was present he was instantly seized, and, according to the custom of the middle ages, when, as in the East, no disgrace was attached to the office of executioner, the task of executing him was committed to the youngest schöppe present, who forthwith hung him from the nearest tree. The quality of the criminal was duly attended to; for if he was initiated he was hung seven feet higher than any other, as being esteemed a greater criminal. If the accused was not present, all the schöppen were, as we have already described, set in pursuit of him, and wherever they caught him they hanged him without any further ceremony.
The sentence was kept a profound secret from the uninitiated. A copy of it, drawn up in the usual form, and sealed with seven seals, was given to the accuser.
We thus see that the proceedings in the Fehm-courts were strictly consonant to justice, and even leaned to the side of mercy. But this was not all: the right of appeal was also secured to the accused in case the schöppen who consulted about the verdict did not agree, or that the witnesses did not correspond in their evidence; or, finally, if the verdict found was considered unjust or unsuitable; which last case afforded a most ample field of appeal, for it must have been very rarely that a sentence did not appear unjust or over-severe to the party who was condemned. It was, however, necessary that the appeal should be made on publication of the sentence,
or at least before the court broke up. The parties were allowed to retire for a few minutes, to consult with their friends who had accompanied them. If they did not then say that they would appeal, the sentence was declared absolute, and they were forbidden, under heavy penalties, to oppose it in any other court. If they did resolve to appeal, both parties were obliged to give security de lite prosequenda. Should either party, being poor or a stranger, be unable to give security, his oath was held to be sufficient, that, as the law humanely and justly expresses it, "the stranger or the poor man may be able to seek his right in the Holy Roman Empire as well as the native or the rich man."
The appeal lay to the general chapter of the Secret closed Tribunal of the Imperial Chamber, which usually, if not constantly, sat at Dortmund; or it lay to the emperor, or king, as the supreme head of these tribunals. In case of the monarch being initiated, he could examine into the cause himself; otherwise he was obliged to commit the inquiry to such of his councillors as were initiated, or to initiated commissioners, and that only on Westphalian soil. Of this species of appeal there are numerous instances. Finally, the appeal might be made to the imperial lieutenant, who then inquired into the matter himself, with the aid of some initiated schöppen, or brought it before the general chapter of which he was president. There was no appeal to the emperor from his sentence, or from that of the chapter.
There were, besides the right of appeal, other means of averting the execution of the sentence of a Fehm-court. Such was what was called replacing in the former state, of which, however, it was only the initiated who could avail himself. Sentence having been passed on a person who had not appeared, he might voluntarily and personally repair to
where the secret tribunal was sitting, and sue for this favour. He was to appear before the court which had passed the sentence, accompanied by two frei-schöppen, with a halter about his neck, with white gloves on him, and his hands folded, with an imperial coin and a green cross in them. He and his companions were then to fall down on their knees, and pray for him to be placed in the condition which he was in before the proceedings commenced against him. There was also what was called the complaint of nullity, in case the prescribed form of the proceedings had been violated. Some other means shall presently be noticed.
363:* In German, Dienstag, probably Dinstag, i.e. Court-day.