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Secret Societies of the Middle Ages

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Trena Alloway
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« Reply #180 on: February 04, 2009, 01:20:12 pm »

court (the Frohnboten) if the candidate had gone through all the formalities requisite to reception, and when that officer had answered in the affirmative, the count revealed to the aspirant the secrets of the tribunal, and communicated to him the secret sign by which the initiated knew one another. What this sign was is utterly unknown: some say that when they met at table they used to turn the point of their knife to themselves, and the haft away from them. Others take the letters S S G G, which were found in an old MS. at Herford, to have been the sign, and interpret them Stock Stein, Gras Grein. These are, however, the most arbitrary conjectures, without a shadow of proof. The count then was bound to enter the name of the new member in his register, and henceforth he was one of the powerful body of the initiated.

Princes and nobles were anxious to have their chancellors and ministers, corporate towns to have their magistrates, among the initiated. Many princes sought to be themselves members of this formidable association, and we are assured that in the fourteenth and fifteenth centuries (which are the only ones of which we have any particular accounts) the number of the initiated exceeded 100,000.

The duty of the initiated was to go through the country to serve citations and to trace out and denounce evil-doers; or, if they caught them in the fact, to execute instant justice upon them. They were also the count's assessors when the tribunal sat. For that purpose seven at least were required to be present, all belonging to the county in which the court was held; those belonging to other counties might attend, but they could not act as assessors; they only formed a part of the bystanders of the court. Of these there were frequently some hundreds present.

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« Reply #181 on: February 04, 2009, 01:20:26 pm »

All the initiated of every degree might go on foot and on horseback through the country, for daring was the man who would presume to injure them, as certain death was his inevitable lot. A dreadful punishment also awaited any one of them who should forget his vow and reveal the secrets of the society; he was to be seized, a cloth bound over his eyes, his hands tied behind his back, a halter put about his neck; he was to be thrown upon his belly, his tongue pulled out behind by the nape of his neck, and he was then to be hung seven feet higher than any other felon. It is doubtful, however, if there ever was a necessity for inflicting this punishment, for Æneas Sylvius, who wrote at the time when the society had degenerated, assures us that no member had ever been induced, by any motives whatever, to betray its secrets; and he describes the initiated as grave men and lovers of right and justice. Similar language is employed concerning them by other writers of the time.

Besides the count and the assessors, there were required, for the due holding a Fehm-court, the officers named Frohnboten *, or serjeants, or messengers, and a clerk to enter the decisions in what was called the blood-book (Liber sanguinis). These were, of course, initiated, or they could not be present. It was required that the messengers should be freemen belonging to the county, and have all the qualifications of the simple schöppen. Their duty was to attend on the court when sitting, and to take care that the ignorant, against whom there was any charge, were duly cited †.



p. 352

The count was to hold two kinds of courts, the one public, named the Open or Public Court (Offenbare Ding), to which every freeman had access; the other private, called the Secret Tribunal (Heimliche Acht), at which no one who was not initiated could venture to appear.

The former court was held at stated periods, and at least three times in each year. It was announced fourteen days previously by the messengers (Frohnboten), and every householder in the county, whether initiated or not, free or servile, was bound under a penalty of four heavy shillings, to appear at it and declare on oath what crimes he knew to have been committed in the county.

When the count held the Secret Court, the clergy, who had received the tonsure and ordination, women and children, Jews and Heathens *, and, as it would appear, the higher nobility, were exempted from its jurisdiction. The clergy were exempted, probably, from prudential motives, as it was not deemed safe to irritate the members of so powerful a body, by encroaching on their privileges; they might, however, voluntarily subject themselves to the Fehm-gerichte if they were desirous of partaking of the advantages of initiation. Women and children were exempt on account of their sex and age, and the period of infancy was extended, in the citations, to fourteen, eighteen, and sometimes twenty years of age. Jews, Heathens, and such like, were exempted on account of their unworthiness. The higher nobility were exempted (if such was really the case) in compliance with the maxim of German law that


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« Reply #182 on: February 04, 2009, 01:20:39 pm »

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,

p. 355

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« Reply #183 on: February 04, 2009, 01:20:54 pm »

were held in the morning, soon after the break of day, such was also the rule with the Secret Court.

When an affair was brought before a Fehm-court, the first point to be determined was whether it was a matter of Fehm-jurisdiction. Should such prove to be the case, the accused was summoned to appear and answer the charge before the Public Court. All sorts of persons, Jews and Heathens included, might be summoned before this court, at which the uninitiated schöppen also gave attendance, and which was as public as any court in Germany. If the accused did not appear, or appeared and could not clear himself, the affair was transferred to the Secret Court. Civil matters also, which on account of a denial of satisfaction were brought before the Fehm-court, were, in like manner, in cases of extreme contumacy, transferred thither.

The Fehm-tribunals had three different modes of procedure, namely, that in case of the criminal being taken in the fact, the inquisitorial, and the purely accusatorial.

Two things were requisite in the first case; the criminal must be taken in the fact, and there must be three schöppen, at least, present to punish him. With respect to the first particular, the legal language of Saxony gave great extent to the term taken in the fact. It applied not merely to him who was seized in the instant of his committing the crime, but to him who was caught as he was running away. In cases of murder, those who were found with weapons in their hands were considered as taken in the fact; as also, in case of theft, was a person who had the key of any place in which stolen articles were found, unless he could prove that they came there without his consent or knowledge. The Fehm-law enumerated three tokens or proofs of guilt in these cases; the Habende Hand (Having Hand), or having the proof

p. 356

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« Reply #184 on: February 04, 2009, 01:21:07 pm »

in his hand; the Blickende Schein (looking appearance), such as the wound in the body of one who was slain; and the Gichtige Mund (faltering mouth), or confession of the criminal. Still, under all these circumstances, it was necessary that he should be taken immediately; for if he succeeded in making his escape, and was caught again, as he was not this time taken in the fact, he must be proceeded against before the tribunal with all the requisite formalities.

The second condition was, that there should be at least three initiated persons together, to entitle them to seize, try, and execute a person taken in the fact. These then were at the same time judges, accusers, witnesses, and executioners. We shall in the sequel describe their mode of procedure. It is a matter of uncertainty whether the rule of trial by peers was observed on these occasions: what is called the Arensberg Reformation of the Fehm-law positively asserts, that, in case of a person being taken flagranti delicto, birth formed no exemption, and the noble was to be tried like the commoner. The cases, however, in which three of the initiated happened to come on a criminal in the commission of the fact must have been of extremely rare occurrence.

When a crime had been committed, and the criminal had not been taken in the fact, there remained two ways of proceeding against him, namely, the inquisitorial and the accusatorial processes. It depended on circumstances which of these should be adopted. In the case, however, of his being initiated, it was imperative that he should be proceeded against accusatorially.

Supposing the former course to have been chosen,--which was usually done when the criminal had been taken in the fact, but had contrived to escape, or when he was a man whom common fame charged openly and distinctly with a crime,--he was not cited

p. 357

to appear before the court or vouchsafed a hearing. He was usually denounced by one of the initiated; the court then examined into the evidence of his guilt, and if it was found sufficient he was outlawed, or, as it was called, forfehmed *, and his name was inscribed in the blood-book. A sentence was immediately drawn out, in which all princes, lords, nobles, towns, every person, in short, especially the initiated, were called upon to lend their aid to justice. This sentence, of course, could originally have extended only to Westphalia; but the Fehm-courts gradually enlarged their claims; their pretensions were favoured by the emperors, who regarded them as a support to their authority; and it was soon required that their sentence should be obeyed all over the empire, as emanating from the imperial power.

Unhappy now was he who was forfehmed; the whole body of the initiated, that is 100,000 persons, were in pursuit of him. If those who met him were sufficient in number, they seized him at once; if they felt themselves too weak, they called on their brethren to aid, and every one of the society was bound, when thus called on by three or four of the initiated, who averred to him on oath that the man was forfehmed, to help to take him. As soon as they had seized the criminal they proceeded without a moment's delay to execution; they hung him on a tree by the road-side and not on a gallows, intimating thereby that they were entitled to exercise their office in the king's name anywhere they pleased, and without any regard to territorial jurisdiction. The halter which they employed was, agreeably to the usage of the middle ages, a withy; and they are said to have had so much practice, and to have arrived at such expertness


p. 358

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« Reply #185 on: February 04, 2009, 01:21:19 pm »

in this business, that the word Fehmen at last began to signify simply to hang, as execution has come to do in English. It is more probable, however, that this, or something very near it, was the original signification of the word from which the tribunals took their name. Should the malefactor resist, his captors were authorised to knock him down and kill him. In this case they bound the dead body to a tree, and stuck their knives beside it, to intimate that he had not been slain by robbers, but had been executed in the name of the emperor.

Were the person who was forfehmed uninitiated, he had no means whatever of knowing his danger till the halter was actually about his neck; for the severe penalty which awaited any one who divulged the secrets of the Fehm-courts was such as utterly to preclude the chance of a friendly hint or warning to be on his guard. Should he, however, by any casualty, such, for instance, as making his escape from those who attempted to seize him, become aware of how he stood, he might, if he thought he could clear himself, seek the protection and aid of the Stuhlherr, or of the emperor.

If any one knowingly associated with or entertained a person who was forfehmed, he became involved in his danger. It was necessary, however, to prove that he had done so knowingly--a point which was to be determined by the emperor, or by the judge of the district in which the accused resided. This rule originally had extended only to Westphalia, but the Fehm-judges afterwards assumed a right of punishing in any part of the empire the person who entertained one who was forfehmed.

Nothing can appear more harsh and unjust than this mode of procedure to those who would apply the ideas and maxims of the present to former times. But violent evils require violent remedies; and the disorganized state of Europe in general, and of Germany

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« Reply #186 on: February 04, 2009, 01:21:35 pm »

in particular, during the middle ages, was such as almost to exceed our conception. Might it not then be argued that we ought to regard as a benefit, rather than as an evil, any institution which set some bounds to injustice and violence, by infusing into the bosom of the evil-doer a salutary fear of the consequences? When a man committed a crime he knew that there was a tribunal to judge it from which his power, however great it might be, would not avail to protect him; he knew not who were the initiated, or at what moment he might fall into their hands; his very brother might be the person who had denounced him; his intimate associates might be those who would seize and execute him. So strongly was the necessity of such a power felt in general, that several cities, such as Nuremberg, Cologne, Strasburg, and others, applied for and obtained permission from the emperors, to proceed to pass sentence of death on evil-doers even unheard, when the evidence of common fame against them was satisfactory to the majority of the town -council. Several counts also obtained similar privileges, so that there were, as we may see, Fehm courts in other places besides Westphalia, but they were far inferior to those in power, not having a numerous body of schöppen at their devotion.

It is finally to be observed that it was only when the crimes were of great magnitude, and the voice of fame loud and constant, that the inquisitorial process could be properly adopted. In cases of a minor nature the accused had a right to be heard in his own behalf. Here then the inquisitorial process had its limit: if report was not sufficiently strong and overpowering, and the matter was still dubious, the offender was to be proceeded against accusatorially. If he was one of the initiated, such was his undoubted right and privilege in all cases.


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Footnotes
347:* Stuhlherr is tribunal-lord, or, literally, lord of the seat (of judgment); stuhl (Anglice, stool) being a seat, or chair.

348:* This word, which cannot be adequately translated, is the low-Latin Scabini, the French Echevins. We shall take the liberty of using it throughout. The schöppen were called frei-(free) schöppen, as the count was called frei-graf, the court frei-stuhl, on account of the jurisdiction of the tribunals being confined to freemen.

351:* Frohnbote is interpreted a Holy Messenger, or a Servant of God.

351:† When a person was admitted into the society he paid, besides the fee to the count already mentioned, to each schöppe p. 352 who was assisting there, and to each frohnbote, four livres Tournois.

352:* The natives of Prussia were still heathens at that time.

357:* In German Verfehmt. We have ventured to coin the word in the text. The English for answers to the German ver; vergessen is forget; verforen is forlorn.



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« Reply #187 on: February 04, 2009, 01:22:00 pm »

p. 360

CHAPTER III.
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

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« Reply #188 on: February 04, 2009, 01:22:12 pm »

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

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« Reply #189 on: February 04, 2009, 01:22:22 pm »

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

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« Reply #190 on: February 04, 2009, 01:22:34 pm »

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


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« Reply #191 on: February 04, 2009, 01:22:46 pm »

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

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« Reply #192 on: February 04, 2009, 01:22:57 pm »

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

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« Reply #193 on: February 04, 2009, 01:23:09 pm »

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

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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

p. 368

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Trena Alloway
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« Reply #194 on: February 04, 2009, 01:23:26 pm »

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

p. 369


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