1911 Encyclopædia Britannica/Fehmic Courts

FEHMIC COURTS (Ger. Femgerichte, or Vehmgerichte, of disputed origin, but probably, according to J. Grimm, from O. High Ger. feme or feime, a court of justice), certain tribunals which, during the middle ages, exercised a powerful and sometimes sinister jurisdiction in Germany, and more especially in Westphalia. Their origin is uncertain, but is traceable to the time of Charlemagne and in all probability to the old Teutonic free courts. They were, indeed, also known as free courts (Freigerichte), a name due to the fact that all free-born men were eligible for membership and also to the fact that they claimed certain exceptional liberties. Their jurisdiction they owed to the emperor, from whom they received the power of life and death (Blutbann) which they exercised in his name. The sessions were often held in secret, whence the names of secret court (heimliches Gericht, Stillgericht, &c.); and these the uninitiated were forbidden to attend, on pain of death, which led to the designation forbidden courts (verbotene Gerichte). Legend and romance have combined to exaggerate the sinister reputation of the Fehmic courts; but modern historical research has largely discounted this, proving that they never employed torture, that their sittings were only sometimes secret, and that their meeting-places were always well known. They were, in fact, a survival of an ancient and venerable German institution; and if, during a certain period, they exercised something like a reign of terror over a great part of Germany, the cause of this lay in the sickness of the times, which called for some powerful organization to combat the growing feudal anarchy. Such an organization the Westphalian free courts, with their discipline of terror and elaborate system of secret service, were well calculated to supply. Everywhere else the power of life and death, originally reserved to the emperor alone, had been usurped by the territorial nobles; only in Westphalia, called “the Red Earth” because here the imperial blood-ban was still valid, were capital sentences passed and executed by the Fehmic courts in the emperor’s name alone.

The system, though ancient, began to become of importance only after the division of the duchy of Saxony on the fall of Henry the Lion, when the archbishop of Cologne, duke of Westphalia from 1180 onwards, placed himself as representative of the emperor at the head of the Fehme. The organization now rapidly spread. Every free man, born in lawful wedlock, and neither excommunicate nor outlaw, was eligible for membership. Princes and nobles were initiated; and in 1429 even the emperor Sigismund himself became “a true and proper Freischöffe of the Holy Roman Empire.” By the middle of the 14th century these Freischöffen (Latin scabini), sworn associates of the Fehme, were scattered in thousands throughout the length and breadth of Germany, known to each other by secret signs and pass-words, and all of them pledged to serve the summons of the secret courts and to execute their judgment.

The organization of the Fehme was elaborate. The head of each centre of jurisdiction (Freistuhl), often a secular or spiritual prince, sometimes a civic community, was known as the Stuhlherr, the archbishop of Cologne being, as stated above, supreme over all (Oberststuhlherr). The actual president of the court was the Freigraf (free count) chosen for life by the Stuhlherr from among the Freischöffen, who formed the great body of the initiated. Of these the lowest rank were the Fronboten or Freifronen, charged with the maintenance of order in the courts and the duty of carrying out the commands of the Freigraf. The immense development of the Fehme is explained by the privileges of the Freischöffen; for they were subject to no jurisdiction but those of the Westphalian courts, whether as accused or accuser they had access to the secret sessions, and they shared in the discussions of the general chapter as to the policy of the society. At their initiation these swore to support the Fehme with all their powers, to guard its secrets, and to bring before its tribunal anything within its competence that they might discover. They were then initiated into the secret signs by which members recognized each other, and were presented with a rope and with a knife on which were engraved the mystic letters S.S.G.G., supposed to mean Strick, Stein, Gras, Grün (rope, stone, grass, green).

The procedure of the Fehmic courts was practically that of the ancient German courts generally. The place of session, known as the Freistuhl (free seat), was usually a hillock, or some other well-known and accessible spot. The Freigraf and Schöffen occupied the bench, before which a table, with a sword and rope upon it, was placed. The court was held by day and, unless the session was declared secret, all freemen, whether initiated or not, were admitted. The accusation was in the old German form; but only a Freischöffe could act as accuser. If the offence came under the competence of the court, i.e. was punishable by death, a summons to the accused was issued under the seal of the Freigraf. This was not usually served on him personally, but was nailed to his door, or to some convenient place where he was certain to pass. Six weeks and three days’ grace were allowed, according to the old Saxon law, and the summons was thrice repeated. If the accused appeared, the accuser stated the case, and the investigation proceeded by the examination of witnesses as in an ordinary court of law. The judgment was put into execution on the spot if that was possible. The secret court, from whose procedure the whole institution has acquired its evil reputation, was closed to all but the initiated, although these were so numerous as to secure quasi-publicity; any one not a member on being discovered was instantly put to death, and the members present were bound under the same penalty not to disclose what took place. Crimes of a serious nature, and especially those that were deemed unfit for ordinary judicial investigation—such as heresy and witchcraft—fell within its jurisdiction, as also did appeals by persons condemned in the open courts, and likewise the cases before those tribunals in which the accused had not appeared. The accused if a member could clear himself by his own oath, unless he had revealed the secrets of the Fehme. If he were one of the uninitiated it was necessary for him to bring forward witnesses to his innocence from among the initiated, whose number varied according to the number on the side of the accuser, but twenty-one in favour of innocence necessarily secured an acquittal. The only punishment which the secret court could inflict was death. If the accused appeared, the sentence was carried into execution at once; if he did not appear, it was quickly made known to the whole body, and the Freischöffe who was the first to meet the condemned was bound to put him to death. This was usually done by hanging, the nearest tree serving for gallows. A knife with the cabalistic letters was left beside the corpse to show that the deed was not a murder.

That an organization of this character should have outlived its usefulness and issued in intolerable abuses was inevitable. With the growing power of the territorial sovereigns and the gradual improvement of the ordinary process of justice, the functions of the Fehmic courts were superseded. By the action of the emperor Maximilian and of other German princes they were, in the 16th century, once more restricted to Westphalia, and here, too, they were brought under the jurisdiction of the ordinary courts, and finally confined to mere police duties. With these functions, however, but with the old forms long since robbed of their impressiveness, they survived into the 19th century. They were finally abolished by order of Jerome Bonaparte, king of Westphalia, in 1811. The last Freigraf died in 1835.

Authorities.—P. Wigand, Das Femgericht Westfalens (Hamm, 1825, 2nd ed., Halle, 1893); L. Tross, Sammlung merkwürdiger Urkunden für die Geschichte der Femgerichte (Hanover, 1826); F. P. Usener, Die frei- und heimlichen Gerichte Westfalens (Frankfort, 1832); K. G. von Wächter, Beiträge zur deutschen Gesch., insbesondere . . . des deutschen Strafrechts (Tübingen, 1845); O. Wächter, Femgerichte und Hexenprozesse in Deutschland (Stuttgart, 1882); T. Lindner, Die Feme (Münster and Paderborn, 1888); F. Thudichum, Femgericht und Inquisition (Giessen, 1889) whose theory concerning the origin of the Fehme is combated in T. Lindner’s Der angebliche Ursprung der Femgerichte aus der Inquisition (Paderborn, 1890). For works on individual aspects see further Dahlmann-Waitz, Quellenkunde (ed. Leipzig, 1906), p. 401; also ib. supplementary vol. (1907), p. 78.