Term and origin of the Feme
The term Feme (also: Femegericht, Femerecht, Femestrafe) refers to a historical legal institution in the German-speaking region that was significant in the Middle Ages, particularly in Westphalia and surrounding areas. Feme is derived from the Old High German ‘fama’ (judgment, law) and originally stood for secret or unofficial court proceedings, whose legal bases, procedures, and punishments differed from those of the established imperial and regional courts.
Feme encompasses both the judicial body (Femegericht) and the punishment it imposed (Femestrafe). Judgments and the execution of sentences were often carried out in secrecy, distinguishing the Feme from public courts.
Historical development and context
Emergence in the Middle Ages
Femerecht developed in the High Middle Ages (from the 13th century) in the area that later became Westphalia. The so-called Freigrafschaften with their Femegerichte gained importance as they exercised independent jurisdiction in times of unstable public order. Originally, these were feudal courts; only later did they become a form of special jurisdiction with their own procedural law.
Function and procedure of the Femegerichte
The Femegerichte primarily dealt with serious crimes, particularly homicides, robbery, treason, and perjury. Proceedings were often held at secret locations (“under the linden tree”) and at unannounced times. The court members, known as Freischöffen, were bound by a strict oath of secrecy.
Procedure and legal bases
The proceedings were based on oral tradition and established legal conceptions. Written protocols were rare; the rules were passed down from generation to generation. Multiple summonses were issued, and failure to appear could result in a guilty verdict. The judgments of the Femegerichte were final, with no provision for appeal or review. The execution of judgments—often in the form of the death penalty—was usually swift and likewise carried out in secret.
Legal framework and position within the legal system
Relationship to territorial and imperial jurisdiction
Although the Femegerichte were sometimes tied to the feudal system, they were not subject to the direct control of the territorial lord or the Empire. Originally, the Feme served as a supplement or emergency solution in areas with weak state control. With the consolidation of territorial lordship, the Femegerichte increasingly lost significance and were often regarded as unlawful competition to the public judiciary.
Recognition and criticism within the legal order
At certain times, judgments of the Femegerichte were recognized by authorities, such as by Emperor Sigismund in the 15th century. However, criticism steadily grew due to the lack of transparency and secrecy. Involvement in political conflicts and abusive practices led to increasing rejection of Femerecht. In the 16th century, during the unification of civil law and the development of uniform court structures, the Femegerichte were officially banned and prosecuted.
Feme in modern law: legacy and legal status
Persistence of the term ‘Feme’
In German law, the Feme as an independent legal institution no longer has any significance and has been legally obsolete since the end of the Middle Ages. Nevertheless, the term is still used and is part of historical legal studies and legal history. Furthermore, the term ‘Fememord’ is used in literature to denote political murders carried out without legal proceedings and as acts of vigilante justice. This led, especially during the Weimar Republic, to the notion being associated with politically motivated assassinations.
Legal evaluation of current Feme practices
Acts today modeled after the historical Feme—such as secret jurisdiction or vigilante justice—are contrary to the current German legal order and are expressly prohibited. Modern criminal law considers vigilantism and secret courts to be criminal offenses. Anyone who establishes an unrecognized jurisdiction, simulates courts, or enforces judgments outside the judicial authorities can be prosecuted under criminal offenses such as coercion, forming criminal organizations (§ 129 StGB), manslaughter (§ 212 StGB), murder (§ 211 StGB), or other offenses.
Terms such as ‘Fememord’ are used today in a historical context or in reference to politically self-determined acts, but have no independent dogmatic legal significance in current law.
Reception, criticism, and significance of the Feme
Historical appraisal
The Feme occupies an ambivalent position in German legal history. On one hand, it represented a form of administration of justice that met local needs in times of weak state order and provided a certain form of punishment and justice. On the other hand, the secretive and non-transparent procedure—with the potential for abuse of power and arbitrary convictions—was seen as incompatible with the principles of the rule of law.
Critical evaluation and review
The historical and criminal assessment of the Feme is strongly shaped by its negative effects. The lack of public scrutiny, the often draconian punishments, and the secrecy are at odds with the fundamental principles of today’s criminal procedural law, including the right to defense, public proceedings, presumption of innocence, and the prohibition of private vigilante justice.
Literature and further information
For further study of the topic Feme, works on legal history and historical treatises offer detailed insights into the legal practice, structures, and influences of the Femegerichte:
- Karl Bosl (ed.): Handwörterbuch der Geschichte, Munich 1972.
- Heinrich Heppe: Geschichte der heimlichen Gerichte Westfalens, Marburg 1857.
- Axel von Campenhausen: Femegerichte und Femestrafen, Berlin 1972.
In summary: The Feme represents a significant historical legal phenomenon, particularly widespread in Westphalia, known for its secret jurisdiction, unofficial procedures, and draconian enforcement of punishments. In modern law, the Feme is meaningless and as a form of vigilantism or establishment of a parallel justice system is expressly prohibited. Legal-historical analysis emphasizes the importance of the development of public court proceedings and rule-of-law principles as lessons learned from the abuses of the Femegerichte.
Frequently Asked Questions
What legal provisions applied to the conduct of Femegerichte in the Middle Ages?
Femegerichte, especially in medieval Westphalia, were governed by an elaborate set of rules drawn from customary law and specific statutes, such as the ‘Femestatuten.’ The composition of the court, proceedings, competencies, and punishments were regulated in detail. Court lords (so-called Freigrafen) had to be admitted in their territory and often appointed or confirmed by the reigning territorial lord. Only certain crimes, particularly breaches of the peace or serious offenses against persons and property, could be tried by the Feme. Participation was restricted to a specific group who were bound by an oath of secrecy. Proceedings generally followed oral hearings with the questioning of witnesses and written records. Thus, Femerecht was a recognized form of court, and its decisions had legal force, although they increasingly faced criticism and came into competition with local lords and urban jurisdictions.
What role did the territorial lord play in relation to the legality of Femegerichte judgments?
The territorial lord had an important oversight and confirmation role regarding the Femegerichte. Originally, the Feme, as part of the land jurisdiction, was under his sovereignty, and the appointed Freigrafen were accountable to him in their judicial conduct. Judgments of the Feme, especially death sentences, were theoretically required to be confirmed by the territorial lord before they could be executed, thereby protecting the lord’s authority over his territories and subjects. Over time, territorial lords increasingly intervened in the practice of the Feme to prevent abuse and emphasize their judicial prerogatives. They could revoke Femegericht privileges, allow countersuits, or even annul judgments, which strongly influenced the legality of the Feme.
Were there legal remedies against the judgments of the Femegerichte?
Formal legal remedies by today’s standards hardly existed against judgments of the Femegerichte, as these courts insisted on the finality of their decisions. Nonetheless, possibilities to oppose judgments did exist: In cases of suspected procedural error, lack of jurisdiction, or clear denial of justice, the affected party could often appeal to the territorial lord or a superior court. Additionally, petitions could be submitted to the Imperial Chamber Court once it was established and as the Femegerichte lost prominence. In practice, however, revisions were rarely successful because the swift and secret execution of judgments—especially death sentences—made subsequent correction nearly impossible.
Records, protocols, and reasoning: How was jurisprudence by the Femegerichte documented?
The documentation of Femegericht proceedings was largely oral, but records and written justifications did exist, mostly in the form of so-called Femebriefen. These recorded accusations, witness statements, the judgment, and those who ordered the sentence. For reasons of secrecy, the names of those involved were often encoded or not mentioned at all. Archives of lordships, monasteries, and cities contain sometimes extensive collections of such documents, although many were lost or deliberately destroyed. Written records served not only as evidence of due process but also as proof of compliance with law and order according to the Femestatuten.
To what extent did Femegerichte conflict with other jurisdictions?
With the rise of centralized princely and municipal jurisdictions, Femegerichte increasingly came into conflict with competing legal authorities. The claim to exclusive jurisdiction over specific offenses and individuals was more and more challenged by territorial lords and cities. Particularly problematic was the Feme’s secretive and sometimes harsh practices, which were considered extraordinary and generated mistrust regarding proper legal process. The growing consolidation of territorial and imperial law led to Feme judgments being contested, in part overturned, and ultimately replaced by new procedural codes.
What statutory sanctions or punishments could a Femegericht impose?
Femegerichte were authorized to punish serious crimes and could impose a wide range of penalties. The most frequent and feared sanction was the death penalty, usually carried out by hanging or the sword. In addition, other punishments could include excommunication, exile, fines, or compensation orders. Enforcement generally took place immediately and in secret, making subsequent oversight difficult. Sometimes, punishments were not only enforced against the accused but also against their family or followers if they were considered accomplices or accessories.
How were defendants summoned before the Femegerichte and what rights did they possess in the proceedings?
The summons before a Femegericht had to be carried out formally and publicly, usually by messengers or heralds. The required number of summonses could vary, but was precisely regulated to prevent arbitrariness. If a defendant was not summoned or refused to appear despite repeated summonses, he could be declared outlawed, which amounted to a judgment in absentia. The right to defense was formally granted, although in practice the actual possibilities for defense were limited due to the predominantly secret and elitist nature of the Femegerichte. Witnesses could be heard, and in certain circumstances, legal counsel was permitted, although this was rare in practice.
