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Trena Alloway
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its true etymon. It is unnecessary, in the present sketch of the history of the Fehm-gerichte, to discuss the merits of each of the claimants: we shall content ourselves with remarking that, among those which appear to have most probability in their favour, is the Latin Fama, which was first proposed by Leibnitz. At the time when we have most reason for supposing these tribunals to have been instituted the Germans were familiar with the language of the civil and canonical laws; the Fehm-gerichte departed from the original maxim of German law, which was--no accuser, no judge, and, in imitation of those foreign laws *, proceeded on common fame, and without any formal accusation against persons suspected of crime or of evil courses. Moreover, various tribunals, not in Westphalia, which proceeded in the same manner, on common report, were also called Fehm-gerichte, which may therefore be interpreted Fame-tribunals, or such as did not, according to the old German rule, require a formal accusation, but proceeded to the investigation of the truth of any charge which common fame of general report made against any person--a dangerous mode of proceeding, no doubt, and one liable to the greatest abuse, but which the lawless state of Germany at that period, and the consequent impunity which great criminals would else have enjoyed, from the fear of them, which would have kept back accusers and witnesses, perhaps abundantly justified. It is proper to observe, however, that fem appears to be an old German word, signifying
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condemnation; and it is far from being unlikely, after all, that the Fehm-gerichte may mean merely the tribunals of condemnation--in other words, courts for the punishment of crime, or what we should call criminal courts.
The Fehm-gerichte was not the only name which these tribunals bore; they were also called Fehm-ding, the word ding * being, in the middle ages, equivalent to gericht, or tribunal. They were also called the Westphalian tribunals, as they could only be holden in the Red Land, or Westphalia, and only Westphalians were amenable to their jurisdiction. They were further styled free-seats (Frei-stühle, stühl also being the same as gericht), free-tribunals, &c., as only freemen were subject to them. A Frei-gericht, however, was not a convertible term with a Westphalian Fehm-gericht; the former was the genus, the latter the species. They are in the records also named Secret Tribunals, (Heimliche Gerichte), and Silent Tribunals (Stillgerichte), from the secrecy of their proceedings; Forbidden Tribunals (Verbotene Gerichte), the reason of which name is not very clear; Carolinian Tribunals, as having been, as was believed, instituted by Charles the Great; also the Free Bann, which last word was equivalent to jurisdiction. A Fehm-gericht was also termed a Heimliche Acht, and a Heimliche beschlossene Acht (secret and secret-closed tribunal); acht also being the same as gericht, or tribunal.
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Footnotes
332:* Dr. Berck has, in his elaborate work on this subject (Geschichte der Westphälischen Femgerichte, Bremen, 1815), collected, we believe, nearly all the information that is now attainable. This work has been our principal guide; for, though we have read some others, we cannot say that we have derived any important information from them. As the subject is in its historical form entirely new in English literature, we have, at the hazard of appearing occasionally dry, traced with some minuteness the construction and mode of procedure of these celebrated courts.
333:* The romantic accounts of the Secret Tribunals will be found in Sir W. Scott's translation of Goëthe's Götz von Berlichingen, and in his House of Aspen and Anne of Geierstein. From various passages in Sir W. Scott's biographical and other essays, it is plain that he believed such to be the true character of the Secret Tribunals.
335:* The Vends (Wenden) were a portion of the Slavonian race who dwelt along the south coast of the Baltic.
339:* Arnold of Lübeck, Chronica Slavorum, l. iii. c. l., apud Leibnitz Scriptores Rerum Brunsvicarum, t. ii. p. 653.
341:* Berck, pp. 259, 260.
343:* See Berck, l. i. c. 5, 6, 7.
343:† Spelt also Fem, Fäm, Vem, Vehm. In German f and v are pronounced alike, as also are ä and e. The words from which Fahm has been derived are Fahne, a standard; Femen, to skin; Fehde, feud; Vemi (i.e. væ mihi), wo is me; Ve or Vaem, which Dreyer says signifies, in the northern languages, p. 344 holy; Vitte (old German), prudence; Vette, punishment; the Fimmiha of the Salic law; Swedish Fem, Islandic Fimm, five, such being erroneously supposed to be the number of judges in a Fehm, or court. Finally, Mözer deduces it from Fahm, which he says is employed in Austria and some other countries for Rahm, cream.
344:* Common fame was a sufficient ground of arraignment in England, also, in the Anglo-Saxon period.
345:* In the northern languages, Ting; hence the Storc Ting (in our journals usually written Storthing), i.e. Great Ting, or Parliament of Norway.
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