Message #127601

[Trena Alloway]

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, ****, 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

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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,

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