Part 12
Under the Papal jurisdiction the trials were conducted with more lenity: torture was not employed. But the Pope became convinced of the guilt of the accused; till then he had been in doubt. Molay made, without compulsion, many very important admissions, as did several high officials of the order, but on sundry points they contradicted one another. Nevertheless, the Pope was still firmly of the opinion that only individual Templars were on trial, not the order, while for the King the annihilation of the order was the main thing. August 8, 1308, the bull “Faciens Misericordiam” ordered a prosecution of the Templars in every country of Christendom; and on the 12th of the same month, by the bull “Regnans in Coelis,” a council was summoned for the year 1310, to determine the question of the Templars. Further ordinances of the Pope had to do with the surrender of the properties of the order to the Church.
Meanwhile the Pope had forgotten to aid the French King’s brother in his pretensions to the crown of the Roman Empire. On the contrary, he favored the election of Henry VII. of Luxemburg, and was glad to find in him a prince who would strenuously oppose the overweening ambition of Philip IV. The tension between the Pope and the French King was increasing, and the trials of the Templars went on sluggishly for two years more. There was much arbitrary ill-usage of Templars. The bishops, to whom the Pope had committed the prosecution of the individual members of the order, in many places gave loose rein to their ancient enmity toward the Templars, and freely used the torture; nevertheless, very many of the accused maintained the innocence of their order, and declared the prior confessions false. This can be explained only by supposing that the abuses in the order did not extend to all the houses. Molay’s behavior on his trial was neither firm nor dignified, ever balancing between self-accusation and vindication. He was never sure of his ground, sought to retard procedure, used equivocal and obscure phrases, and continually protested his orthodoxy; and the other members for the most part acted in like manner: but their excuse is the hard usage they endured, and Molay was not permitted to complain of that.
All the Templars arrested in Paris, numbering 546, were on the 28th of May, 1310, mustered in the garden of the Bishop’s palace, and there the accusation was read to them. Six of the accused—three knights and three clerics—protested in the name of all against the treatment they had received, and demanded the release of all Templars and arrest of their accusers. In vain! During the investigation thirty-six members of the order died in prison at Paris. May 12, 1310, those who had retracted their confessions, to the number of 54, were burned alive: to these were afterward added eight more, and at Rheims nine met the same fate: they all protested their innocence at the supreme moment. It is worthy of note that the Pope, who till then had favored delay in the proceedings, was now for instant action. He sharply reproved the English authorities for refusing to employ the torture; and he did his best to accomplish the destruction of the Templars at Avignon, who had taken up arms to defend themselves; but, though defeated, they were adjudged innocent; and it was the same in Castile. In Germany, where the order, though weak in numbers, made a resolute stand, the Pope offered no convincing proof of the charges; and in England, too, nothing could be proved against the accused members. But throughout the greater part of Italy the Templars fared as in France, except that they were not condemned to the stake. In vain did the celebrated Raymond Lully, at the Council of Vienne (1312), plead for the preservation of the order by a consolidation of all the military orders in one, whose Grandmaster should be that French prince who happened to be King of Jerusalem: for he hoped thus to conciliate the good will of Philip. The Pope, who had long been urged by the King to suppress the order, now made haste to save the property of the Templars from falling into secular hands, and so, by the bulls “Vox in Excelso” and “Ad Providam Christi Vicarii,” published April 3 and May 2, 1312, respectively, he made over to the Hospitalers all the estates of the Templars, estates in Spain excepted.
The unfortunate Grandmaster Molay, who received a pittance of four sous per diem to alleviate his misery, bore his imprisonment with great fortitude; but March 11, 1313, he and Godfrey de Charney, an official of the order, having retracted their confessions, were slowly burnt to death on an island in the Seine, by order of the King, without any judicial process. Molay, it is said, cited the two murderers of his brethren, Philip and Clement, to appear before the judgment seat of God. They both died, one of colic, the other in consequence of a fall from his horse, eight and thirteen months, respectively, after the death of Molay. The order was suppressed everywhere except in Portugal, where it took the name “Order of Jesus Christ,” and continued in existence. Its Grandmaster, Prince Henry the navigator, a hundred years afterward, employed its wealth in promoting the high ends of civilization. In other countries the Templars either wandered about as fugitives, or entered the order of Hospitalers. The seizure of the order’s estates in France was annulled by the bull of suppression, but Philip, nevertheless, maintained his hold on the house of the order in Paris, and on the treasure there stored. The remainder of the property was plundered by the nobility and the Church; and the Pope surely was not forgetful of his own interest. The Hospitalers afterward succeeded to their rights, but that did them hardly less harm than good, for it cost them a great sum to release the estates of the Templars from the grasp of the robbers; besides, many a small piece of property was made away with by princes, great lords, orders, churches, and monasteries.
_PART SEVENTH_ _The Femgerichte._
1. COURTS OF JUSTICE IN THE MIDDLE AGE.
The wild disorder attending the irruption of the Gothic nations having subsided, society, which had lost its bearings, had to organize itself anew. The first step toward this end was taken when society’s task was distributed among innumerable fractional parts of itself, each fraction trying to do its own share of the work; the next step was the uniting of all these fractional parts under one religious idea—that of Christianism, and under one political law—that of feudalism. The Pope and the Emperor represented the religious and the political ideas respectively. As long as one was true to Pope and Emperor—i.e., was a good Christian and a good subject—all was well with him, and he might, in all other matters, do as he pleased. The principle of Justice was not regarded: no wrong act was punished as violating right, but always as doing harm. Even murder was not regarded as infringement of human right to life, but simply as harm done to the people of the murdered one. If one was without relatives, his slayer went unpunished; but if the murdered man left a family or kinsmen, the murderer, on paying to them a certain sum, went forth free. Thus, the utmost unrestraint prevailed in the several small aggregations of people, and the utmost diversity between one little community and another. Of bureaucratic, centralized, cast-iron government there was no faintest foreshadow; nor was government a function assigned to any one, but, like the administration of justice, an acquired right. In a given province this one had acquired the government, that one the civil and a third the criminal judiciary; one was obeyed in peace, another commanded the people in war. Jurisdictions were undefined and inextricably mixed up—a consequence of the feudal system, under which the King granted rights now to one man, again to another, as favors, never inquiring how these might consist with rights previously granted to others. In this way it became possible in the Middle Age for such juristic abnormities as the Femgerichte to come into existence. The Femgerichte resulted from the confusion existing in judiciary affairs, just as the religious abnormity of the monastic orders of knights resulted from the very opposite condition of things in the Church—the excess of regulation. For the confusion (absence of regulation) and the excessive regulation were near akin; they both sprang out of the unrestraint of private life in the Middle Age, which unrestraint naturally produced, under the rule of the Church, a multitude of monastic rules (e.g., the Rule of St. Augustin, of St. Benedict, of St. Columba, etc.); while, on the contrary, the feebleness of the Empire, due to the jealousy of the Popes and the ambition and avarice of the feudal lords, was fatal to any organization of the administrative and judicial functions, and though there were many codes of law, there could be no standard for distinguishing right and wrong.
The cause of this difference of development between State and Church was, that the Church had grown from the top downward, from the hierarchy down to the people; while the State, on the contrary, had grown from below upward. During the process of migration and settlement, each nation or horde was self-governed, perfectly free and independent: hence, the popular, genial, oftentimes even jovial and humorous cast of Teutonic law, as compared with the hard, pedantic, abstruse, austere character of the Jus Romanum. Roman law has only a corpus juris; Teutonic law has Wise Saws, Juristic Proverbs, Juristic Drolleries, Juristic Myths (Weistuemer, Rechtssprichtwoerter, Rechtsschwoernke, Rechtssagen).
Originally, among the Germans, the freemen themselves were the court and chose their president, the Graf (graf now equals count). Not until the time of Karl the Great (Charlemagne) did the grafs become standing officials, and later an hereditary order and lords proprietary. As the functions of government were by degrees entrusted to fewer and ever fewer hands, being transferred from the people to favored feudal lords, and from them passing finally into the hands of an individual sovereign—a quite natural process, for while the people increased in number they did not become better educated, and therefore grew ever less fitted for self-government—so, too, judgment, quitting the open, embowered courts amid the lindens, with heaven’s breezes whispering among the leaves, and heaven’s blue dome overarching all, withdrew behind dank and frowning walls, from the countenance of the whole people to a meeting of a small bench of stern judges.
Thus gradually were the rights of the freemen diminished. The freemen was less and less frequently called to sit in judgment, for the president of the court, the graf, was no longer an equal, but a great lord, their superior, who made up the court as to him seemed best, and who even cared nothing for the Emperor.[2]
Footnote 2:
What follows regarding the Femgerichte is based on Theodor Lindner’s work, “Die Femgerichte,” Münster and Paderborn, 1888. (Whatever may have been the original meaning of the word “fem” in “femgericht,” it is enough to know that in usage it is equivalent to “secret”; hence femgericht—secret judgment, or secret tribunal.)
Westphalia was the original home of the Femgerichte, and they owed their rise to the fact that there the royal ban (Koenigsbann), that is to say, the right possessed by the King alone, of conferring the grafship on the grafs, was still alive, in modified form indeed, yet with its substance unimpaired. Owing to the granting of various privileges to ecclesiastical and secular magnates the jurisdiction of the grafs was in time divided up. Besides, there were special courts for freemen, and special courts for the half-free and the unfree, the former courts being under the free grafs, and the other under the gaugrafafs (district grafs). Now, as the majority of the population were under the gaugrafs, the possession of a gaugrafship developed into sovereignty; while the position of the free grafs became peculiar: the office was often sold and passed from hand to hand. The free grafs, who were often persons of little means, in order to maintain their dignity, had to lean on the King’s ban, or warrant, obtainable from the King alone. But often the free grafships died out, or they were consolidated with gaugrafships. But nowhere did they retain so much of their original character as in Westphalia—a geographical expression of various meanings, indeed, but in general it denoted the region between the Rhine and the Weser. The term Freigraf dates from the twelfth century.
Not only the King but the duke also had influence over the free grafships. After the break-up of the ancient duchy of Saxony, every princely land proprietor within its territory was duke of Westphalia; this is specially true of the Archbishop of Cologne, and also of the bishops of Muenster, Osnabrueck and Minden, and of the Duke of Saxe-Lauenburg—dukes of Westphalia all, but with more or less limitation. Probably the duke was entitled to preside over any free court, and to summon to his own tribunal, the “botding,” the free grafs. So, too, the stuhlherr (lord of the manor) possessed the right of presiding, even when he was no prince, but only a graf; and often he assumed that the free graf gave judgment only in his (the lord’s) name, and so granted release from the jurisdiction of the free courts, to cities, for example. The free graf and his assessors, the schoeffen (a lower grade of judges), afterward called freischoeffen, constituted the freigericht (free court), afterward known as femgericht. These offices might fall to any freeman—and any one was reckoned a freeman who had “his own smoke,” i. e., a house of his own.
In the latter half of the 14th and the first half of the 15th century the emperors bestowed on the archbishops of Cologne, as dukes of Westphalia and lieutenants of the Emperor, the right of investiture of all free grafs and supervision of them all over Westphalia. A chapter of free grafs was held yearly at Arnsberg, and hence the Arnsberg tribunal obtained the first rank.
As the free grafs held their investiture from the king, they looked on themselves as king’s officers, and little by little went on extending their jurisdiction over the whole empire—a design favored by the confusion reigning everywhere, and even approved by the emperors themselves. At last the free grafs began to think that they were higher than the emperor, and had no need of his meddling: this arrogance was at its height in the reign of Sigmund, and it was still to be seen under Frederic VII.; in fact, Frederic, for having taken steps to punish some insubordinate free grafs, was summoned by free grafs to stand trial.
Some of the emperors did, indeed, set up free graf tribunals outside the limits of Westphalia; but these never prospered. In the 15th century it was an axiom that such courts could exist only in Westphalia, or, as the saying was, “on red earth,” a phrase that does not occur prior to 1490, and the sense of which is not quite clear; for neither is the soil of all Westphalia red, nor is red soil confined to Westphalia: and the same criticism may be made if “red earth” be taken for “blood-stained earth.”
2. THE SECRET TRIBUNAL.
The early “free courts” were in a certain sense “private” courts, inasmuch as they were not open to all like the courts of the gaugrafs (or judges of districts). The associate judges (Freischoeffen) were called “wissende” (wisemen, knowing ones), which, in old times, meant “judges.” The “private” tribunal of the Feme became by degrees a “secret” tribunal about the middle of the 14th century, as the free grafs became more conscious of their ambitious aims. The Schoeffen were now required to bind themselves by oath to observe secrecy: the one who proved false to his oath was first to have his tongue plucked out, and then he was to be hanged, either three or seven feet higher than a thief. The penalty was exacted very rarely, and probably never the first item of it. The obligation of secrecy extended over all the proceedings of the secret courts, even their letters and summonses. But the most important secret was the countersign, by means of which the initiated recognized each other. This was made up of four words (taken from the oath), Stock, Stein, Gras, Grein; and as the words were pronounced one laid his right hand on the others’ left shoulder. Poetry and romance have made the Feme courts sit in subterranean chambers, at night, the faces of the judges masked. The fact is that the tribunals of the Feme were set up at the ancient seats of the free tribunals, and of such places there were in Westphalia more than a hundred; and the trials were always held in the open air, in broad daylight. Whether in certain cases they were also public, so that any one might be present, is not known. In all cases where testimony was taken the proceedings were secret; whoever willingly or unwillingly was present unbidden at the secret deliberations was straightway hanged from the nearest tree.
Very remarkable was the universal recognition throughout Germany of the power of the Femgerichte. In 1387 the most distinguished people of Cologne were “wissende”; about 1420 the Rhineland was full of wissende belonging to every grade in society; and soon after the same might be said of Bavaria, Tyrol, Switzerland, Suabia, Franconia, Saxony, Prussia. Every manor lord and every free city needed the advice of wissende. Princes and cities had their judges admitted as schoeffen; archbishops and princes, even the Emperor Sigmund, were initiated: in the middle of the 15th century there must have been more than 100,000 freischoeffen in the empire. To be initiated became a craze, a fad; the native Westphalians were amazed at the folly of their southern and eastern countrymen.
And the long arm of the Femgericht jurisdiction reached as far as the host of wissende: the localities in which the activity of the secret tribunals was manifested were scattered all over the empire; in fact, the proceedings of these courts which affected Westphalia itself became a very small fraction of the whole.
But with the spread of the Feme jurisdiction arose opposition to the same. There were seen faint beginnings of opposition even in the early part of the 14th century, when Bremen decided not to allow members of the Feme courts to reside within its jurisdiction; toward the close of that century other cities took more effective measures, and in the 15th were even formed leagues of cities for self-defense against the encroachments of the Feme. Brunswick appealed to the Pope and the Emperor, and Hildesheim and Erfurt to the Council of Basel. In the middle of the 15th century several cities, especially in Southern Germany and in Holland, were freed from the jurisdiction of the secret courts by the supreme ecclesiastical and civil authorities. Then the dukes of Bavaria and of Saxony forbade their subjects laying complaints in the Westphalian courts, and some cities punished that offense with death, imprisonment, or banishment.
A Feme court consisted of a free graf and at least seven schoeffen. The graf was required to be a freeborn Westphalian of stainless reputation, whatever his station in life, for peasants were often chosen to be grafs. The schoeffen also had to be freemen born, and if not of Westphalian birth, were required to present proofs of their fitness. There was a fee for admission to the Feme. As time went on the examination of applicants became less and less strict, and often very questionable characters, even serfs and men accused of crimes, were admitted: such admissions were illegal, and the men chosen under such circumstances were called notschoeffen (makeshift schoeffen).
The free graf sat at a judgment-board, on which lay a naked sword and a rope as symbols of avenging justice, and the schoeffen took oath on these instruments. Each free graf and each schoeffe of a given court was required not only to be present at a trial, but to take part in pronouncing sentence. When the trial was one of special importance several hundred schoeffen would be in attendance.
The Femgerichte had their special codes and statutes, which were from time to time amended. In these the competence of the courts was defined, and this had to do with matters purely criminal, at least so far as the trials were held in secret. The crimes of which the Femgerichte took cognizance—vemewrogige punkte (points for femic animadversion)—were, according to the list drawn up at Dortmund in 1430, as follows: 1, robbery and acts of violence against ecclesiastics or churches; 2, larceny; 3, robbery of a woman in childbed or of a dying person; 4, plundering the dead; 5, arson and murder; 6, treachery; 7, betrayal of the Feme; 8, rape; 9, forgery of money or of title to property; 10, robbery on the imperial highway; 11, perjury and perfidy; 12, refusal to appear in court on summons. Apostasy from the Christian faith was put at the head of the list in an assembly held at Arnsberg 1437, and in 1490 heresy and witchcraft were added. For the person found guilty there was but one punishment, death, and only one manner of death, by the rope. This penalty could be inflicted without sentence if the offender were taken in the act, or if he confessed guilt, or if there were eyewitnesses of the crime.
That among the offenses punishable by the Feme heresy and witchcraft held almost the first place shows that these tribunals were no object of apprehension to the ecclesiastical power. This secret association, therefore, differed from that of the Templars, as also from that of the Stonemasons (which will be next considered) especially in this, that the Feme was no league of Illuminati, but that their specialty was opposition to the law of the stronger and to the rule of petty states, and that their aim was to uphold and exaggerate antiquated judicial institutions.
The procedure of the Femgerichte was entirely in accord with the principle of ancient Teutonic law, that “where no complainant appears, neither is there any judge.” It was not the inquisitorial court procedure of the 16th–19th centuries, in which the judge made investigation on his own account, but a procedure founded entirely in the practice of civil courts, and one that agreed well with the independent spirit of the Middle Age, and the view that then prevailed that law was a matter of personal rights.
The free tribunals took up the complaint from whatever quarter it came. All schoeffen, too, were under obligation to bring to the attention of the free courts, and to prosecute all doings coming under the animadversion of the Feme. Hence were a schoeffe to give information regarding such offenses to any other court, he was liable to be hanged; and the same fate befel the one who, having been entrusted with a bill of accusation, should open the same and betray its contents. Accusations were not entertained unless when submitted by wissende. The accuser had to stand betwixt two fellow schoeffen, his sponsors, in front of the tribunal in kneeling posture.