Secret Societies of the Middle Ages

by Thomas Keightley

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.