Having traced the origin of the Fehm-gerichte and their various appellations, as far as the existing documents and other evidences admit, we are now to describe the constitution and procedure of these celebrated tribunals, and to ascertain who were the persons that composed them; whence their authority was derived; and over what classes of persons their jurisdiction extended.
Even in the periods of greatest anarchy in Germany, the emperor was regarded as the fountain of all judicial power and authority, more particularly where it extended to the right of inflicting capital punishment. The Fehm-gerichte, therefore, regarded the emperor as their head, from whom they derived all the power which they possessed, and acknowledged his right to control and modify their constitution and decisions. These rights of the emperors we shall, in the sequel, describe at length.
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."