The Source:
Mathias Schmoeckel, ‘Holy Roman Empire of the German Nation’, in The Oxford Handbook of European Legal History, edited by Heikki Pihlajamäki, Markus D. Dubber, Mark Godfrey, Oxford University Press 2018
I. Introduction and Methodology
The ‘Holy Roman Empire’ (HRE) signifies more than a nation or a state like ‘France’ or ‘Spain’, as it has a universal and a theological, if not soteriological ambition. For a long time this phenomenon has puzzled lawyers as well as historians. How do we approach something that for centuries defied all legal or political standards and conventions? In order to understand its objective, we cannot simply follow a line of emperors as many historians such as Joachim Whaley have recently done or regard it as a succession of dynasties. More than a chronological order, a juridical analysis of the characteristics of this social order will be necessary to understand the phenomenon. Only an understanding of its legal ambitions will help to understand its course of development over the centuries.
Unlike European states, the term HRE does not refer to a specific territory, but invokes strange and difficult notions. Could it be as easy as to use its terms as a clue for understanding its nature? Just as the Church has its notae of the tradition of the Nicaean Creed and thus is defined as the unam sanctam apostolicam ecclesiam, the HRE collects similar attributes in its name, which might be understood as its essential features. Church and empire are institutions, which share special traditions, amend deficiencies of the other, and thus can both be seen as holy or necessary for humankind. In taking up these notae of the empire, the aspirations to and differences from modern law and political theories will be explained.
Although the ‘HRE of the German Nation’ originated only in the late fifteenth century, its name and political aspirations refer to ideas of Antiquity and the Middle Ages, which obviously cannot be left aside. Even though the ontological ambitions of the empire invoke a timeless relevance, the historical focus of this chapter has to be laid on the Middle Ages and the early modern period, in which this political entity slowly acquired the means to solve internal differences and to accept and to defend its boundaries.
II. Holy
Although the title ‘Holy’ can only be traced back to 1157, the tradition invoked is much older. Charlemagne was crowned during the mass of Christmas Eve in 800 by Pope Leo III. Ever since, but also following the example of Clovis’ baptism, coronations were part of a service. Saint Charlemagne became the epitome of a Christian monarch. As protectors of the Church, the Frankish kings and emperors became more and more involved in Church politics. Already Pippin, who became the first ‘Carolingian’ king of the Franks in 751, had to invade Italy and fight the Lombards as a repayment for his coronation by the pope, although he had no interests in this area. All the later Italian wars and crusades were legitimated primarily by the function of the emperors as protectors of the Church, or in accordance with the protocol of the officium stratoris which involved the emperor holding the stirrup for the pope in order to get on his horse. The emperors were anointed as deacons of the Church during their coronation and wore clerical habits as well as a mitre. Tracts and orders of the imperial coronation explored the theological nature and the office of worldly power.
Furthermore, the imperial attributes indicate a divine legitimation. The imperial crown, probably made for Otto I in the 960s, has Byzantine enamel plates, one of them showing Christ on the front with the inscription ‘per me reges regnant’ (‘through me kings reign’). The ‘Holy Lance’ or ‘Spear of Destiny’, a Burgundian heirloom, was thought to be a gift from heaven with one of the holy nails from the holy cross in the front. It was venerated and believed to guarantee success in wars, even by some of the Nazi leaders. All these imperial insignia were acclaimed as sacred relics in 1315. Papal indulgences were granted for visiting them. As their presence was seen to make their location sacred, mass could be celebrated wherever they were brought. Only in the Protestant traditions did these relics become the ‘imperial treasures’. The emperors held more ecclesiastical functions than other European monarchs. However, they never got close to the ‘sacre’ of the French kings, who after their anointment with the ‘Holy Oil’ were thought to be able to cure the sick.
The popes on their side treated the imperial dignity in a different way. Drawing presumptively from Diocletian’s tetrarchy, having divided his empire not only into East and West, but also differentiating between the superior ‘Augustus’ and the inferior ‘Caesar’, they tended to detect a distinction between the different emperors. It is highly probable that Leo III in his coronation of Charlemagne thought himself or at least his Church as acting as the ‘Augustus’, who had the right to install his subordinated ‘Caesar’. In this perspective, the emperor was nothing but a high dignitary working for the Church, revocable as soon as he had ceased to fulfil his duties with respect to the Church. The ‘Dictatus Papae’ proves such ecclesiastical expectations for the time around 1075.
The twelfth-century chronicler Otto von Freising regarded the HRE as the fourth and last empire before the return of Christ, drawing on the Old Testament at Daniel 2 and 7. Furthermore, with reference to the New Testament at 2 Thessalonians 2:6, the emperor could be seen as the Κατέχων/katéchōn, a force of order and the last barrier before the apocalypse. The necessity of a union of Christians was defended with Eph 5:30.
Moreover, the empire was holy because it stood for a just, Christian community. Since the late ninth century, the popes and their Church tried to define the criteria of such a ‘Christian society’ led by pope and emperor. The Church had to define the moral standards and the emperor had to defend these ideals. Necessarily, there could only be one realm with perfect justice, in which Christianity had to join. Thus, unity would bring peace, prosperity, and a righteous life for everybody as the prerequisite for eternal justification.
Particularly with the rediscovery of Aristotle in the thirteenth century, this aspect of a necessary, strong, secular power helped to defend the idea of the empire, and this argument was used from the ‘Liber Augustalis’ of the Emperor Frederick II in 1231 until the ‘Monarchia’ of Dante Alighieri and other political thinkers throughout the ages. In both English and German, ‘holy’ is derived from ‘whole’. A comprehensive political union is thought to guarantee peace and prosperity. In a time that still embraces the idea that a (European/global) union will foster the economy and hinder war, and yet defends the particularities of the nations, the idea of a ‘Holy Roman Empire’ as an all-comprehensive tie between the states might seem less strange. ‘Holy’, in this sense, is nothing else but the core of modern ‘sustainability’; this equation might help to grasp the importance of the antique concept.
The rediscovery of the Greek texts of Aristotle, however, destroyed the idea of a necessary unity. Just as the Ancient Greeks had different πόλeις (póleis)/cities/states, this implied pluralities of states. Man was no longer seen as a member of an all-comprehensive (Christian) ‘societas’, but of particular home towns and provinces. Based on the old European standards of law and ethics, these states then sought to achieve the best performance of Christian order, and this concurrence was regarded as more effective than uniformity.
III. Roman
The ‘Roman’ tradition refers to the empire of Ancient Rome. In 976 we find reference to the ‘imperator romanorum’, in 1034 to the ‘imperium Romanorum’, and in 1040 to the ‘rex Romanorum’. This had not always been regarded as the most important characteristic of the realm. In crowning his son Louis (‘the Pious’) himself, Charlemagne emphasized the tradition of the Frankish monarchs and wanted to overcome the defects of his own coronation. For some time, his own Roman coronation did not play an essential role for his political pretensions nor for his immediate successors. The same is true for the Ottonian kings, who derived their authority primarily from Charlemagne. In this perspective, the dynasty and the Frankish traditions legitimated the rulers. For this reason, even Alfonse VII of Spain (1105–57), born of a Carolingian mother, was crowned in 1135 as ‘imperator totius Hispaniae’. Only in the twelfth century did the idea of a translatio imperii became dominant, which argued for the necessity of one single empire alone. In this perspective, Leo III installed Charlemagne as the Roman emperor, which a little later was acknowledged by the Byzantine emperor and meant a formal equality of the two emperors, while the eastern Church had already become excommunicated, leaving only the western emperor with an Orthodox Church. With Otto I, the imperial dignity and duty were finally transferred to the kings of East Francia.
Essentially, the emperor was nothing but the ‘rex Romanorum’. The difference was hard to describe. Only in the fourteenth century was the candidate elected by the electors called ‘rex romanorum in imperatorem promovendus’. Just as the bishop-elect had a right to be installed and ordained as the legitimate bishop according to canon law, this elected rex had the right to be crowned by the pope in order to be called emperor. Only in the fifteenth century, particularly with the emergence of the Habsburg dynasty, was the papal coronation no longer seen as a prerequisite for the imperial title. After that, both titles tended to merge. Whenever the successor was elected in the lifetime of the emperor, however, he was to be created ‘king of Rome’. In 1811, therefore, Emperor Napoleon installed his infant son and presumptive successor (‘Napoleon II’, 1811–32) again as ‘roi de Rome’.
Since Charlemagne, the empire had been ruled with and by law, but not necessarily by Roman law. Only the Church claimed to live in the tradition of the Roman law. Charlemagne republished the ancient laws of the peoples in his realm, asked the pope for a new ecclesiastical code, and created a great number of shorter laws in chapters (capitularia), which created a new structure for the empire and its economy. The idea of a law for each people might be Roman, but the Roman law itself was less the focus than the magnificent cultural tradition.
With the reawakening of legal science in the twelfth century, this heritage provided important arguments for the struggle with the Church. Civilian lawyers helped Frederick Barbarossa to define his rights as ‘dominus mundi’ or, more substantially, his incomes from royal prerogatives (regalia). In the tradition of Constantine and Justinian, it was the emperor who had the right to enact law, to legitimate children, and to give order to the Church and not vice versa. As the notion of dominium/ property was derived from Roman law, Ricardus Malumbra (d.1334) argued that the emperor was necessary for everybody who wanted to secure his property. The first academic dispute among emperor and pope about the primacy in a Christian order led to the creation of some tracts (‘libelli de lite’), which on the side of the emperor took great profit from Roman law. This ‘investiture controversy’ centred on the installation of abbots and bishops, and was solved in several national agreements until the imperial ‘concordat of Worms’ in 1122.
Starting in the thirteenth century, however, the canon law started to play a larger role in the formation of independent European monarchies. The election of the new emperor, when there was no male heir, is also proof of how the empire followed the Church in its administration. The ‘rex superiorem non recognoscens’ helped France and others to exclude all imperial influences on their own country. In the fourteenth century, emperors like Louis IV ‘the Bavarian’ used inventions of canon law order to administer their empire with more uniform rules and some learned councils. However, thanks to the evolution of legal science, canon and Roman law became more and more amalgamated. Canon law rules concerning tithes and the doctrine of the commentators were used to establish a new doctrine of taxes by Johannes Bertachinus. This modernity, thanks to canon law, however, did not exclude some exceptional claims to special features of Roman antiquity, such as Louis’ IV coronation in 1328 by the will of the ‘Roman people’.
The Protestant Reformation changed the legal background once again in a dramatic way. Luther strongly objected to any authority of canon law. Accepting one decretal, he argued, would mean accepting the supreme authority of the pope, who in his vision was no more than any other bishop and thus in principle had no secular authority. The rejection of canon law, however, caused the emerging of a legal lacuna. Roman law had to take over, for which particularly Melanchthon had a special liking. He thought it to be the equivalent of natural law, just like the Decalogue, so that the ‘Corpus iuris civilis’ could be regarded as its long version. As a written law, it was certain and accessible. For these reasons, Roman law was generally much better appreciated than the local traditions, even if they might contain some improvements. The dominance of Roman law in ‘German’ legal history is largely attributable to the Protestant Reformation.
The Protestant universities of the empire, therefore, had a particular doctrine concerning the sources of law. Roman Catholic writers, like Spanish and Italian writers of the sixteenth century, focused on the medieval tradition, for example writing commentaries on Thomas Aquinas or on the Decretals of Gregory IX of 1234, even though modern ideas of systematization had already been elaborated. By contrast, Protestant authors, with their particular veneration for Roman law, formed a new school of law, though without ignoring canon law completely. Inspired by Luther, Melanchthon, and the Saxon law tradition, Saxon law professors in particular excelled in erudition and the extent of their publications from the sixteenth to the eighteenth centuries. Most importantly, however, they sought new ways to infuse their confession and their traditions into the ius commune. Since the early nineteenth century this school of lawyers has been called the ‘usus modernus pandectarum’. This name was taken from the title of a book by Samuel Stryk published in 1690. Whereas some German authors believed that Roman law had been received completely, others concluded that this was only true for a modern version as established by the new literature. The title seemed to justify both opinions. The small set of erudite families in Protestant parts of Germany formed a scientific community of its own with distinctive features contrasting with universities of Roman Catholic confession, and can easily be detached from other national approaches of this age. Usus modernus pandectarum, therefore, should not be used for phenomena outside the empire. Of course, the traditions of local, Roman, and canon law influenced all European states. But instead of generalizing this finding, we should concentrate on the special features that divide the European schools of law in modern times and make them distinctive. The specific mixture of legal law traditions together with local styles helped to shape national characteristics.
In Lutheran churches, thanks to the accepted canon law tradition and the flourishing canon law science in Saxony, represented particularly by Justus Henning Boehmer (1674–1749), the tradition was more apparent than in the Calvinist tradition. In criminal matters, the medieval oral Saxon law tradition inspired the reformers of Wittenberg to use oral procedure for their new ecclesiastical law courts, the ‘consistories’. Benedict Carpzov (1595–1666) used this idea to concentrate all argumentation and evidence on one single date in court, so that the duration of the process was considerably shortened. In marriage law, divorce slowly became more accepted with respect to the necessities of the state; King Frederick II of Prussia in particular used this device in order to augment the population of his realm. In contract law, the morally binding force of all promises led to the evolution of a uniform contract notion. For the protection of the Protestant territories, the old term ‘ius gentium’—the law assumed for those who were not Roman citizens—was reinvented as a new legal doctrine that protected the independence of principalities against foreign influences and excluded external pressures on their own populations.
Most ingenious, however, was the invention of the new legal concept of ius publicum. Rejecting the old Roman law understanding as including anything in the public interest, it was now designed to incorporate inviolable rights of the members of the empire such as the principalities. Dominicus Arumaeus (1579–1637) of the University of Jena presented the contents of the new concept in five volumes, written by a large number of professors of Jena, in order to strengthen the position of his lord, the Duke of Saxe-Weimar. This branch of the Wettin family had just lost its electorate and all possessions in Saxony to the younger line of the family; it retained only some minor Thuringian duchies. For this reason they did not fear the Roman Catholic emperor alone, but even more their Lutheran cousins and neighbours. But they believed in the power of learning and science and fostered their new university. Arumaeus’ legal task was therefore twofold. Public law on the one hand had to limit imperial rights and secure the princes against central demands. On the other hand, the empire was envisaged as a shield against aggressions within the empire. The emperor had to be strong enough to defend minor princes. In order to draw up such a new doctrine, Arumaeus and his followers reverted back to old laws and privileges like the ‘Golden Bull’ of Charles IV in 1356. What originally had been a special grant of privileges or particular rights to the electors, was now reinterpreted as a lex fundamentalis, establishing inviolable principles of the imperial constitution, binding the emperor as well as the subjects. Johann Jacob Moser still taught that these fundamental laws had both the character of a treaty and of law, because they had to be accepted by the estates and as laws so as to grant them binding force. Other fundamental laws included the imperial electoral capitulations, the law establishing public peace in 1495, and the ordonnances establishing the imperial courts. In this way public lawyers created the concept of an imperial constitution and its principal contents, namely the protection of the weaker princes of the realm This concept was copied immediately by Roman Catholic lawyers as it was equally useful for the Bavarian duke or other Roman Catholic princes of the empire.
The ancient Roman eagle, at any rate, continued to serve as the heraldic sign of the empire and its successors, and the colours of the black eagle with red beak on golden ground are still reflected today in the German national flag.
IV. Empire
Unlike the Capetian dynasty in West Francia, the dynasties of the east, the Saxons, Salian, and Hohenstaufen, hardly lasted for 100 years. In each case the new succeeding dynasty had to be chosen. This helped to establish elections as the decisive means for the determination of the successor. In spite of some major personalities, particularly from the thirteenth century onwards the central authority of the emperor declined. Rather than an emperor’s empire, it was more the formula of ‘emperor and empire’ (‘Kaiser und Reich’) which represented the structure of the HRE. By the sixteenth century, therefore, the decisions were taken by the ‘emperor and empire’.
This development became particularly obvious when Charles IV in his ‘Golden Bull’ (1356) granted major privileges and rights to the electors. What Louis IV before his election in 1314 had first granted exclusively to Charles’ uncle, Balduin of Henneberg, the Elector and Archbishop of Trier, namely the participation in the imperial economic policy, now was transferred to all electors. With each election these electoral capitulations promised other parts of the central power to the electors, until they started to form a co-government. The decisions of the empire, in this perspective, were now made either by the emperor alone, although only in case of imperial rights specifically reserved for him, or—as a general rule—by the emperor together with the electors, or in special occasions in the diet together with all representatives of all the subjects.
The ‘electors’ were distinguished by their exclusive, constitutive, and essential right to elect the emperor. When Pope John XXII (pope 1316–34) reclaimed a right to control this election of the protector of the Church after the election of Louis IV, the electors decided to exclude foreign influences. The imperial law ‘Licet iuris’ of 1338 reserved the election for the seven electors: the archbishops of Cologne, Mainz, and Trier as well as the king of Bohemia, the Count Palatine, and the Dukes of Saxony and Brandenburg. The reasons for the selection of these princes around and shortly after 1300 are still strongly debated. The concentration on the Rhine region displays its political and commercial importance. These princes traditionally had special functions at the emperor’s table—to serve his food and to pour his drink—as well as in the realm. The secular princes all descended from Rudolf von Habsburg and represented the major families of the empire. Any one or more of these reasons might have been decisive.
The Hohenstaufen emperors like Frederick I and Frederick II tried to establish feudal bonds with their princes. The majesty of the emperor, therefore, relied on the consent of the princes expressed in their oath of fealty. In 1235, Duke Otto gave his duchy of Brunswick, which was his property, to the emperor in order to receive it back as a feudal loan. This was considered to be the only way he could formally become a prince of the empire. The feudal ties of fealty were regarded as constitutive for any official function within the HRE. But in reality the lasting influence of feudal law until the end of the empire was one of the main reasons why the empire remained essentially weak. Merely personal bonds were weaker than the institutional structures the papal Church installed in the thirteenth and fourteenth centuries. When other secular authorities became more effective in concentrating their authorities in certain territories, the empire was still not prepared to give away its pretensions of supremacy.
In the thirteenth century, some local lords started to be called ‘domini terrae’. This demonstrates that certain princes, dukes, counts, or barons acquired a dominant position in their region, sometimes because of their important lands, sometimes as supreme judges, sometimes due to other important rights within the region. Frederick II in his ‘Statutum in favorem principum’ in 1231 conferred more rights on them and sought their collaboration for the administration of the realm. From the medieval territorial dominion (Landesherrschaft) these princes of the empire acquired something near supremacy over their land, almost excluding any influence of the emperor or empire. The Golden Bull of 1356, which conferred privileges for the electors concerning their supreme jurisdiction, excluding the imperial courts, was another important step in this direction.
Starting in the sixteenth century, this territorial supremacy (Landeshoheit) was used to strive for true sovereignty. At this time, Jean Bodin and his vision of the state characterized by the concentration of rights on the monarch became the new model of political order, which other European states and princes moved to adopt. Due to this development, the HRE, unable to change, became more and more archaic.
The lack of an effective legal order became obvious. The HRE was anything but a clearly defined commonwealth. Land was inherited, bought, leased, etc, and each transaction could include a change of legal order. Without public registers and an effective jurisdiction such property rights and their legal foundations became more and more uncertain. Particularly in the West a multitude of minuscule and yet immediate subjects of the emperor hindered the formation of larger territories with a modern administration. In many ecclesiastical territories a number of local noble families took over the government and controlled local politics. All titles, dignities, privileges, and revenues were objects of a constant competition. The results of this elaborate game slowly formed the political and legal shape of the empire.
Those territories and possessions which had not been taken over by the domini terrae remained subjects directly of the emperor (‘reichsunmittelbar’) and for this reason claimed a legal equality with other immediate subjects of the empire like the most significant princes. These princes, however, hardly formed a distinct political body. Some were electors, the rest had to merge with the other noblemen. Among the princes, the titles hardly expressed their actual hierarchical position within the empire: a count could be an elector (Palatine) or the official public notary, he could rule a territory of his own or serve as an official for another lord—or both. Some cities acquired the status of an ‘imperial city’ (Reichsstadt) and depended therefore on the emperor alone like Cologne or Nuremberg, whereas others flourished as new capitals of increasingly independent duchies such as Berlin, Munich, and Nancy. Even Jews were thought to depend directly on the protection of the emperor as imperial servants (Reichsknechtschaft). For this special favour they had to pay important fees, which made this right attractive again for other princes.
In some regions, some so-called ‘imperial’ courts acted with hardly any contact to the emperor and no control by his court. In Westphalia, some men founded new imperial courts without any legitimation just like a private enterprise. Acting as imperial judges, they became feared for their clandestine, but also cruel and therefore all the more successful prosecutions. This ‘Feme’-jurisdiction became rather effective: often the first threat by this court to take over a case alone sufficed for the parties to cease all disputes.
Competition can be a valid principle on some occasions. Yet this is not the case for the development of stable structures, a capital with settled, well-paid, and effective institutions. What made Paris and London and France and England strong, was almost completely lacking in the HRE. With income from the regalia transferred to the electors, the emperor had to pay for his institution with his own money or by the income of his own territories and his domestic means (Hausmacht). The number of magistrates had to be limited, therefore. This did not prevent imperial jurisdiction, legislation, and administration. But compared to other countries these endeavours were on a tiny scale.
This loose conglomeration of territories under the feeble authority of the emperor proved to be unable to protect its members when the Ottoman Empire conquered the Balkans. The threat of Turkish troops in the Balkans created the necessity to establish a common army. The princes were prepared to help the emperor, but demanded more rights of participation. In 1495 a major agreement was achieved, due to which the constitution of the empire became more developed. An Imperial Chamber Court (Reichskammergericht) was established and the princes acquired the right to present their own candidates as the judges. This imperial court therefore did not depend directly on the imperial politics. An ordinance established the procedural rules of the court, and the first imperial tax was created in order to finance the new institution. The tax, however, required a clear decision about which territory still formed part of the empire. The imperial registers (Reichsmatrikel) were set up and played an important role: firstly, they determined the boundaries of the empire, making clear, for example, that the Low Countries and Switzerland still were part of the empire. Secondly, they determined who was a direct subject of the empire and who depended instead on one of these direct subjects. The tax fees themselves were much less important. Thus, the HRE more and more acquired the features of a state.
The new court was celebrated with a general prohibition of violence (Reichslandfriede). From this moment onwards, private vengeance slowly disappeared, and an effective imperial jurisdiction was applied instead with some success in providing justice. As compensation for the independence of the ‘Imperial Chamber Court’, the emperor founded a new court in his capital Vienna, the Imperial Aulic Council (Reichshofrat), which politically depended on the emperor. Both courts competed in many areas, but this enhanced the prospects of the parties, who could either seek imperial support in Vienna or try their chances at law with the Imperial Aulic Council. Whether this provided the basis for an early guarantee of legal standards (Rechtsstaatlichkeit) within the empire, as Wieacker has suggested, can be debated.
The imperial diet became more distinct as well and after 1489 it was divided into three estates (collegia): the electors, the ecclesiastical and secular lords, and the imperial cities. Some immediate subjects of the emperor were not even represented in the diets. Such immediate subjects to the emperor like monasteries, villages, and knights could claim a status equal to the great princes of the empire; de facto, however, it was only the imperial protection which prevented the local lord from swallowing such lands. The counts did not vote individually, but had to form two, later four groups (‘benches’, Bänke) with one vote each.
Plans for a further development of the empire failed. Particularly a project of a common government in 1500/1502 could not be realized due to the different political interests. The establishment of districts as imperial circuits (Reichskreis), however, was more fruitful, particularly where there were no dominating princes that sought to swallow their neighbours. Regions with many small territories could unite and find ways for a more effective policy. Yet, in regions with strong princes the members were more afraid of losing independence and did not risk cooperating.
For some decades, the new regime provided for important new laws, such as the Imperial Ordinance for the public notaries (1512) and the Constitutio Criminalis Carolina (1532), a code for criminal law with criminal procedure. A great number of imperial ordinances regulated all sorts of commerce, professions, and spheres of life. This helped the courts and the legal institutions within the empire to act effectively and in compliance with common juridical standards. The confessional differences, however, led to numerous wars and eventually the devastating Thirty Years War.
The Protestant Reformation, however, led to new turmoil. The Lutherans, who were denied equal rights with the Roman Catholics, complained against this decision of the diet in 1529 and therefore were called ‘Protestants’. Only in 1555 was a general peace treaty concluded in Augsburg (Reichslandfriede), accepting the Lutherans—but not the Calvinists or others—and their acquisitions. The princes were allowed to choose the confession of their territory (‘cuius regius, eius religio’), while individuals had only the possibility to leave the country without their possessions. Secularization established new territories, for example of the Teutonic order in 1525, which led to the creation of the duchy of Prussia, but also endangered the old structures. After the conversion of the Dukes of Brandenburg, Saxony, and the Count Palatine, the imminent conversion of the Archbishop of Cologne threatened to change the majority of the electors in favour of the new confession. Charles V and other Catholic forces united to prevent this upheaval.
A series of hostilities and warfare continued until the Thirty Years War from 1618 until 1648, which again was rather a sequence of different wars in different areas with particular brutality against the civilian population. The peace treaties concluded in 1648 at Münster and Osnabrück, the ‘Westphalian Peace Treaties’, therefore constituted a major achievement not only for the acceptance of the Calvinists, who were granted equal rights, but also for the establishment of the imperial constitution as a whole. The right to choose the confession was still reserved for the princes: cuius regio, eius religio; but the subjects had a right to migrate and to take their possessions along. These princes acquired the right to give order to their churches (‘ius circa sacra’). Particularly Protestant princes thus became almost sovereign, reigning in their territories as the secular and ecclesiastical lord with hardly any interference from the emperor. Catholic princes, however, sought to strengthen their position in their local dioceses, but could not deny the right of the pope to govern his church. Political issues of the imperial diet touching confessional discrepancies could be discussed first by the confessional groups. The diet therefore was divided (‘itio in partes’) into the ‘Corpus Catholicorum’ and ‘Evangelicorum’.
The Westphalian Peace Treaty wanted to leave all unsettled questions to the diet. But of course during the next diet at Regensburg, where the prince of Thurn and Taxis, the Imperial Master of the Post, represented the emperor, it proved to be impossible for the princes to solve all questions. This raised the delicate question whether the next diet still had the right to change the constitution. The easy answer was not to conclude the diet officially, but simply to adjourn it to the next year. As the legal issues could not be solved in the next year again, the same solution had to be implied. As a result of this manoeuvre the empire developed a constant parliament (‘Immerwährender Reichstag’) from 1663 onwards. Thanks to the constant parliament, the empire had a new tool to solve all struggles and differences.
The legal structures of the HRE were rather loose. The emperor in Vienna, the chancery at Mainz, the diet at Regensburg could hardly form a unity, and the big territories rather tended to minimize the political role of the HRE. The wave of modern codifications, for example the Prussian general law of the land (Allgemeines Landrecht) from 1794, enforced the legal diversity and the autonomy of the territories of the HRE. A modern lawyer even interpreted it as a regional subject of international law and predecessor of the European Union. This may be true with regard to the universal ambitions of the empire, but it was not true for the smaller territories, which depended on the imperial institutions and the protection of the emperor.
Although the developments from 1495 helped incrementally to establish features of a European state, the HRE remained a political oddity. Obviously, this political entity could hardly be explained in the conventional political terms of Aristotle. As Pufendorf pointed out, the empire was neither a true monarchy, the role of the electors being too strong, nor an aristocracy, nor even a democracy. Pufendorf, therefore, concluded that the empire resembled a ‘monster’ with no true political features. This opened the way for an interesting debate over the nature of the empire and a particular literature (‘Reichspublicistik’). Henning Arnisaeus (c.1575– 1636) first defended the imperial monarchy drawing on Bodin, but later agreed that the empire had divided powers, so that all members taken together could be called sovereign. Johann Jacob Vitriarius (1679–1745) even praised the constitution, as it mitigated the monarchy and gave rights to the subjects. This reciprocity of rights and duties would permit a more liberal government. Drawing on Tacitus, he even saw a Germanic tradition of freedom in this constitution. Venerating the idea of the medieval emperor, Dietrich Reinkingk (1590–1664) defended the empire’s constitution of his time; the strong, sovereign emperor was needed to defend the empire and Christianity. Bogislaw Philipp von Chemnitz (1605–78, as ‘Hyppolitus a Lapide’) attacked this view and argued that the states of the empire, like his employer, the king of Sweden as Duke of Pomerania, had acquired sovereignty. In this new perspective, the alternative to a strong nation state could already be interpreted in a positive way. Although it did not prove to be the political solution for the nineteenth or twentieth century, it could become inspiring again in a post-national era.
V. Germanic Nation
The discrepancy between the universal aspirations of the empire and its concentration on territories in central Europe was less evident—due to the centrality of its localization and its dominance of the European trade routes—than the German domination. In the imperial tradition, the emperor governed the three kingdoms of Italy, Burgundy, and Germany, which were separated and identified around 1000: the regnum teutonicum, the regnum italicum and the regnum burgundicum. They constituted three distinct parts of the empire with different chanceries: Mainz for the German parts, Cologne for the Italian parts, and Trier for the Burgundian kingdom. Each had separate counts palatine as well, since the thirteenth century also the ‘vicarii’ (vicars in the sense of viceroys) who were important public figures and represented the emperor. And Emperor Charles V, who possessed so many territories in Europe and America, claimed that the sun would never set on his empire.
But already Robert, king of Naples, criticized in 1313 the fact that the emperor was a German, taken from a barbarian tribe of bad Christians, where robbery— as Thomas Aquinas would report—was no crime. Nicolas of Cusa (1401–64) near Trier called the empire ‘imperium germanicum’, proud perhaps of the dominance of his native country. In 1474, the empire was first called ‘of the Germanic Nation’, and in 1512 this became part of the official name. This was the last change of the official title of the HRE and indicated its slow transformation into a modern state.
It is not clear, however, what was meant by that addition: was it a limitation or a clarification? Did it point to the centrality of Germanic territories or did it want to minimize the role of other parts like Bohemia? Did it give weight to the dominant nation, or did it involve a policy to subdue other nationalities? Did it perhaps even refer to the ‘Germanic freedom’, found in Tacitus’ ‘Germania’ or in other ancient texts, as a key feature of this empire? There was no dominant explanation at the time, nor is there a uniform answer by historians today.
As a matter of fact, the empire did not necessarily have to be connected with German lands. Already Aethelred II (978–1016) used the imperial title for his dominance in England. King Alfonse VII’s (1105–57) coronation as emperor in 1135 has already been mentioned. Most of all, throughout the centuries the French kings tried to be elected as emperors and used imperial attributes like Philip II ‘Augustus’, the title of ‘rex christianissimus’ and the reliquary of Jesus’ crown of thorns. With the new attributes, the empire tried to change its nature to acquire a more state-like appearance.
This, however, was a highly problematical endeavour. First there was the question of frontiers. The imperial register (Reichsmatrikel) named the provinces, but did not specify the boundaries. It was even difficult to state at which date Switzerland and the Dutch General States no longer formed parts of the HRE. The Westphalian Peace Treaties treated them rather as distinct political entities. But clear-cut geographical lines could not be determined in this approach. As landowners could shift from loyal subjects to rivals and equals of their lords, the attribution of land to certain princes could be equally difficult. For some authors this question was solved only from the perspective of centres with surrounding peripheries, avoiding thus the idea of clear-cut frontiers.
Furthermore, throughout the centuries the HRE was tied to several of its neighbouring states. The Emperor Sigismund was king of Hungary and Croatia, Bohemia, elector of Brandenburg, and dominated the Christian parts of eastern Europe. Later the Habsburg dynasty, rulers of Austria and Bohemia, acquired Hungary and other provinces in the Balkans. The dukes of Schleswig-Holstein on several occasions ascended to the throne of Denmark, yet remained part of the empire with their duchies of Holstein and Lauenburg. The kings of Sweden were dukes of Pomerania after 1648. With Maurice of Nassau, the Netherlands became tied with Hesse-Nassau. The electors of Brandenburg acquired Prussia and in 1701 became kings in Prussia. And many more temporary unions could be added such as Spain becoming one of the kingdoms of Charles V. On many historical occasions, the conference of the princes of the HRE resembled more a meeting of European monarchs, and this remained true again even for the German Confederation in the nineteenth century, which united the kings of Hanover (also until 1837 king of Great Britain and Ireland), the Netherlands, Denmark, Sweden, Prussia, and the emperor of Austria-Hungary. Starting in the seventeenth century, such conferences invoked the question of the balance of power, so that the diet of the HRE served also to pacify the continent.
The question is, whether this internationality was part of the way to identify the HRE. Its central position in the continent meant that the HRE benefited from the strategic advantage and acquired political influence over nearly every political objective developed by states across the continent. The diversity of politics and strategies in north and south, east and west Europe collided in the realm of the empire. Nineteenth- and twentieth-century ideas of an independent ‘Middle- Europe’ demonstrate the geopolitical benefit and can explain why the idea of an empire could endure.
When in 1700 the last Spanish Habsburg king, Charles II, died, the Bourbon dynasty took over the Spanish territories. But this was impossible for the duchy of Milan, which was a fief from the empire. The Austrian Habsburg, Emperor Charles VI, took it over and handed it later to his son-in-law, Francis-Stephan of Lorraine (Emperor Francis I). Although this acquisition had to be achieved by the wars concerning the Spanish succession, the relevance of feudal law for the empire was demonstrated once again. Francis-Stephan’s departure from his native Lorraine, which went instead to the former king of Poland, Stanislaus Leczinski, Louis XV’s father-in-law, triggered numerous further territorial changes. King Frederick II of Prussia even wanted to transfer the Wittelsbach rule from the Palatinate and Bavaria to the kingdom of Naples-Sicily. Although this development did not materialize, such plans show how few bonds necessarily existed by this time between the princes and their territories. Some European royal families assumed the right to swap their territories with no possible co-determination of their subjects. Once again, state structures appeared rather to disguise the rule of this small number of families with the imperial dynasty as their undisputed head. The numerous children, particularly of Maria Theresa, and the felicity of Austrian marriage politics contributed to this impression. Once again the concept of the empire expressed a certain supremacy over the modern European states of its time. Once again its lack of territorial bonds proved to be its strength. As a puzzling result, the most distinguished state in Europe had in reality hardly built sufficient infrastructure to resemble a state at all.
The distinguished public lawyer Philipp Vitriarius (1647–1720) pointed out the advantages and disadvantages of the HRE: its moderation of the monarchy gave more freedom, and the participation of the estates in the empire resembled a modern system of constitutional checks and balances. But at the same time it lacked clearly defined boundaries, it had a constant shortage of money—a disadvantage it shared with many states, however, like France—and there was no permanent army to threaten possible enemies. The participants of the empire often struggled amongst themselves, and misbehaviour could often not be thwarted or punished. When Frederick II of Prussia invaded Austrian Silesia in 1740, neither the empire nor a combination of imperial troops nor even an army of European monarchies was able in the ‘Silesian Wars’ to reinstall the rightful monarch, Empress Maria-Theresa. …
[MH: Have omitted next section: VI. 1806 and Beyond]
VII. Summary
The notion of empire and the case of the HRE are difficult to understand today and have been misused for political ambitions many times. Legal historians should help to prevent such abuses. If Bodin provided for the dominant view of the nation state, the notion of the empire remains an oddity difficult to understand for modern lawyers. It defied the new—and necessary—rule of equal rights for all states and fostered ideas of hegemony until the twentieth century. But this irregularity is again the reason why this term seems so intriguing for legal romanticists. Besides the universal aspirations of the empire, there can hardly be found any logical structure or systematical approach to define its nature. Symbols and titles were used instead by the authors of the seventeenth and eighteenth century to explain it. The same is true for the notions of holiness and its Roman tradition for this empire. …
Only two English-language publications in the bibliography (our old favourites):
Whaley, Joachim, Germany and the Holy Roman Empire (Oxford University Press 2014)
Wilson, Peter, The Holy Roman Empire: A Thousand Years of Europe’s History (Allen Lane 2016)
Louis the Pious blessing the division of the Carolingian Empire in 843: from the Chroniques des Rois de France, fifteenth century
Please send comments or corrections to me directly at mgs.heller@gmail.com
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