back the origin of the Fehm-gerichte to the time of Charlemagne, making them to have been either directly instituted by that great prince, or to have gradually grown out of some of his other institutions for the better governing of his states. A fifth places their origin in the latter half of the eleventh century, and regards them as an invention of the Westphalian clergy for forwarding the views of the popes in their attempt to arrive at dominion over all temporal princes. A sixth ascribes the institution to St. Engelbert, Archbishop of Cologne, to whom the Emperor Frederic II. committed the administration of affairs in Germany during his own absence in Sicily, and who was distinguished for his zeal in the persecution of heretics. He modelled it, the advocates of this opinion say, on that of the Inquisition, which had lately been established. The seventh and eighth theories are undeserving of notice. On the others we shall make a few remarks.

The first writers who mention the Fehm-gerichte are Henry of Hervorden, a Dominican, who wrote against them in the reign of the Emperor Charles IV., about the middle of the fourteenth century; and Eneas Sylvius, the secretary of Frederic III., a century later. These writers are among those who refer the origin of the Fehm-gerichte to Charlemagne, and such was evidently the current opinion of the time— an opinion studiously disseminated by the members of the society, who sought to give it consequence in the eyes of the emperor and people, by associating it with the memory of the illustrious monarch of the West. There is, however, neither external testimony nor internal probability to support that opinion. Eginhart, the secretary and biographer of Charlemagne, and all the other contemporary writers, are silent on the subject; the valuable fragments of the ancient Saxon laws collected in the twelfth century

make not the slightest allusion to these courts; and, in fine, their spirit and mode of procedure are utterly at variance with the Carlovingian institutions. As to the hypothesis which makes Archbishop Engelbert the author of the Fehm-gerichte, it is entirely unsupported by external evidence, and has nothing in its favour but the coincidence, in point of time, of Engelbert's administration with the first account which we have of this jurisdiction, and the similarity which it bore in the secrecy of its proceedings to that of the Holy Inquisition-a resemblance easy to be accounted for, without any necessity for having recourse to the supposition of the one being borrowed from the other.

We can therefore only say with certainty that, in the middle of the thirteenth century, the Fehm-gerichte were existing and in operation in the country which we have described as the Westphalia of the middle ages. To this we may add that this jurisdiction extended over the whole of that country, and was originally confined to it, all the courts in other parts of Germany, which bore a resemblance to the Westphalian Fehm-gerichte, being of a different character and nature *

It remains, before proceeding to a description of these tribunals, to give some account of the origin of their name. And here again we find ourselves involved in as much difficulty and uncertainty as when inquiring into the origin of the society itself.

Almost every word in the German and cognate languages, which bears the slightest resemblance to the word Fehm†, has been given by some writer or other as

*See Berck, l. i. c. 5, 6, 7.

+ Spelt also Fem, Fam, Vem, Vehm. In German ƒ and v are pronounced alike, as also are a 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,

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 or 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, signifyholy; 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.

* Common fame was a sufficient ground of arraignment in England, also, in the Anglo-Saxon period.

ing 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 Fehmding, 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.

* In the northern languages, Ting; hence the Store Ting (in our journals usually written Storthing), i. e. Great Ting, or Parliament of Norway.

CHAPTER II.

The Tribunal-Lord-The Count-The Schöppen-The Messengers-The Public Court-The Secret Tribunal-Extent of its Jurisdiction-Places of holding the Courts--Time of holding them--Proceedings in them--Process where the criminal was caught in the fact--Inquisitorial Process.

HAVING traced the origin of the Fehm-gerichte and their various appellations, as far as the existing documents and other evidences admit, we are now to describe the constitution and procedure of these celebrated tribunals, and to ascertain who were the persons that composed them; whence their authority was derived; and over what classes of persons their jurisdiction extended.

Even in the periods of greatest anarchy in Germany, the emperor was regarded as the fountain of all judicial power and authority, more particularly where it extended to the right of inflicting capital punishment. The Fehm-gerichte, therefore, regarded the emperor as their head, from whom they derived all the power which they possessed, and acknowledged his right to control and modify their constitution and decisions. These rights of the emperors we shall, in the sequel, describe at length.

Between the emperor and the Westphalian tribunal-lords (Stuhlherren), as they were styled, that is, lay and ecclesiastical territorial lords, there was no intermediate authority until the fourteenth century, when the Archbishop of Cologne was made the im