A feature of the medieval penal system worthy of all appreciation is the protection which, true to the ancient Teutonic character, it threw about the virtue of woman and the helplessness of childhood. Unchas tity was punished with axe and sword (p1. 52, fig. 7). In Hesse the man who committed rape was put to death by having an oaken stake driven through his heart, and the wronged woman was entitled to strike the first three blows.
The modern notion that the fear of punishment is unavailing to deter from crime is entirely refuted by history. During the fifteenth century, when the penal code as yet knew nothing of mercy, not a single case of infanticide is known to have occurred in Nuremberg; in the sixteenth, when stern justice had begun to relax through humanitarian influences, there were six cases; in the seventeenth, thirty-three; and so on until the present clay, when the crime is practised almost without risk of punish ment. The laxity of our laws has as little in common with true human ity as the severity of former times had with real barbarism. Punishments were really brutal only when political or religious fanaticism inflicted them. Such, for instance, was the execution of the Bohemian nobles who before the beginning of the Thirty Years' War rebelled in behalf of their civil and religious liberty against the house of Habsburg, but who committed the grave error of choosing the incompetent count palatine Frederick V. as their king. Their execution (fig. 13) resembled a veritable massacre: our picture is from a contemporary engraving which is accompanied with a description of the event and the names of all concerned in it.
As curiosities of the old penal system we mention a few punishments which entailed the loss of honor, and which were inflicted in a manner designed to excite ridicule. A woman who had beaten her husband was in sonic places mounted upon a donkey, facing its tail, and led through the town. Knights were punished by having their spurs broken off and by being mounted on a wooden horse. Princely culprits incurred the odd punishment of having to carry a dog—an association which was consid ered especially disgraceful. Hanging, which was of itself considered more dishonorable than beheading, was made more so by suspending a dog by the side of the criminal. Suicides were dishonorably buried at some cross-roads.
I'clnic proceeding to a consideration of these celebrated tribunals our primary purpose will be to free them from the secret horrors with which writers of fiction have surrounded them. They were noth ing more than the remains of the ancient imperial courts which had been preserved in Westphalia—or the " Red Land," as it was called—while in other districts their jurisdiction had been transferred to the local consti tuted authorities. The fact that the Magyar and Norman invasions had
not reached North-western Germany, and that the predatory feudal nobles had gained less foothold there than elsewhere, explains how it was pos sible for its free peasants to maintain themselves exempt from the general bondage of their class, and to preserve, among other ancient institutions, the old sheriffs' courts.
It must indeed be admitted that the Velnnic courts extended their jurisdiction and sphere of action beyond their original and normal limits. This was owing, however, less to abuses originating in the tribunals them selves than to the need of preserving order amidst the prevailing anarchy, especially during the period of the Interregnum. .
The Vehmic courts were held in the daytime, iu the open air, and on some designated spots or illaIstat1e. The presiding officers, or Freigrafen, were still considered imperial functionaries, and the name Frcistukl meant the judgment-seat of the free sheriffs or assessors (freie Schiiffen). When these Westphalian courts became almost the sole actual power, law-abid ing men in all parts of the empire united with them and served them as frissende (initiated); that is, as assistants familiar with the laws.
Gradually the element of secrecy was introduced into the Vehm as a protection to its members against the lawless classes, who naturally antag onized its work. As the power and influence of the Vehm increased, the secret tribunal dealt only with such cases as the ordinary courts were unable to regulate. Death was the sole punishment which it inflicted, and its members, lacking the usual means of carrying out the sentence, were necessarily themselves the executioners. Its manner of procedure was in exact accordance with the ancient Teutonic process as reformed by Char lemagne, and was regulated by brief and simple but definite forms. If the accused did not duly respond to the summons of the court, the sen tence was made known to him, and it was carried out whenever he was captured. A willow withe and the nearest tree was the simple gallows.
The Vehm summoned even sovereigns before its courts, but with women, clericals, or Jews it did not concern itself. Eventually it degen erated into an agency of partisanship and injustice, which finally led to its abolition. Figure 12 (pt. 52), copied from a miniature painting pre served in Augsburg, represents a court-room of the fifteenth century.
As to the civil procedure of this early period, we shall only remark that, though often of interminable length, it always sought to establish justice; while, on the other hand, the predominance during the subse quent period of intricate formalities in the treatment of questions of equity did no little injury to the general sense of right.