Holy Roman Empire
The Holy Roman Empire existed from the Middle Ages until 1806, comprising all German states and, at times, Lorraine, parts of Italy, the Netherlands, the Swiss Confederation, Bohemia and Silesia. From the 15th century onwards, the name ‘Holy Roman Empire’ was often supplemented with ‘of the German Nation’.
The crowning of Charlemagne as Emperor by the Pope in Rome in 800 AD symbolized the Roman-papal church’s decision to choose the Franks rather than Byzantium as its protector against the Lombards, who had threatened Rome from northern Italy during the 8th century. The German King Otto I managed to restore the Empire and was crowned Emperor in 962, thus confirming his better claim to legitimacy compared to any of the other contemporary European monarchs. Subsequent to 976, records referred to an Imperator Romanorum. At the time, this was seen to give expression to the old idea that Rome had never ceased to exist but had continued to live on in the Franco-Roman Empire. The rebirth of the Empire also had a dimension as a means towards mankind’s salvation. In the time of the crusades, the imperial chancellery of Frederick I sometimes used the term Sacrum Imperium (1157); later on, records also referred to a Sacrum Imperium Romanum (1254).
Christian theology had developed the notion of a translatio imperii that became popular from the 12th century onwards that had interpreted a prophecy in the Book of Daniel (2:21) as the story of God transferring his earthly realm from Babylon to Persia, then to Greece and finally to Rome. Therefore, a coronation by the Roman Pope signified not only the continuation of the glory of the Roman Empire, but also the transfer of the guardianship over all Christendom to the Emperor. The addendum ‘sacred’ was created to reinforce the Emperor’s position in the investiture controversy with the Roman church. The addendum ‘of the German nation’ surfaced first in an enactment by Frederick III in 1495. Although the Empire traditionally had been thought of as being a transnational entity—the main parts being the German territories, Italy and Gaul (esp Burgundy and Lorraine)—this conception steadily waned. The imperial reforms of 1495 already were a mainly German affair. Moreover, most of the smaller territories in Italy and Burgundy no longer participated in the imperial institutions such as its parliament or imperial diet, ie the Reichstag, and remained linked to the Empire by feudal relationships alone.
2. Was the Empire a state?
a) Past discourse
The question whether the Empire constituted a state has been fervently debated among scholars and politicians alike during most of its existence. The first serious debate took place in the context of the Thirty Years’ War. The Empire did not seem to fit into any of the forms of government defined by Aristotle, who was at this time the main authority on the topic. Jean Bodin singled out maiestas as the main characteristic of a ruler and thus proposed sovereignty as the crucial feature. Scholars close to the Emperor, such as Dietrich Reinkingk, considered him the sole sovereign, whereas others like Hippolithus à Lapide (ie Bogislav von Chemnitz) sided with the estates of the realm who exercised their sovereignty by way of the Reichstag, thereby classifying the Empire as an aristocracy. In reality, however, imperial powers were shared between the Emperor and estates under a complex legal regime, and so a half-hearted compromise was struck: the Empire was labelled a mix of the traditional forms of government, a status mixtus. Samuel Pufendorf, using the nom de plume of Severinus de Monzambano, ridiculed this notion by calling the Empire ‘some kind of irregular body and similar to a monster’ and, in 1667, suggested regarding it as a confederacy of independent states.
Even after its demise in 1806, German lawyers and politicians continued to discuss the legal nature of the late Empire, but these discussions reflected contemporary concerns. In 1813 Wilhelm von Humboldt praised the mixture of decentralized and centralized imperial structures as the ideal prototype of a specifically German form of government. And when the rise of Prussia made the advent of a German nation state look possible for the first time in history (it was eventually accomplished in 1871), pro-Prussian historiographers like Gustav Droysen, Heinrich von Sybel and Heinrich von Treitschke discovered their admiration for strong German rulers of the past and idealized the ‘noble state of the Middle Ages’ (Heinrich Mitteis) as a contrast to the steady decline of the Empire during the early modern age, a decline that in their eyes would now be reversed by the rise of Prussia.
Some reference to the Empire was also made in the renewed dispute as to whether Austria—or, more precisely, its German part—should be included in the project of German national unity; that would have been much to the disliking of Prussia since the Habsburg Empire, that had dominated the imperial institutions for so long, was the only German power strong enough to resist Prussia. In 1908, Friedrich Meinecke wrote in retrospect that Humboldt had held ‘a view of the state not informed by the concept of state’ in this regard. In the years leading to the incorporation of Austria into the Third Reich, only a few authors pointed to the Empire as an example of a pan-German state comprising both Prussia and Austria (eg Heinrich von Srbik, Deutsche Einheit, 1935), but to little avail because official Nazi ideology had declared the Empire ‘a non-state worth neither remembering nor re-establishing’ (Ernst Rudolf Huber).
After World War II, the start of European integration altered the image of the old Empire once again. For contemporary thinkers—and for a Europe tired of war and longing for a new Westphalian peace—the idea of a confederation of states with a common jurisdiction made the Empire look attractive again as the ideal of ‘an order marked by peace and law’ (Franz Schnabel and Karl Otmar Freiherr von Aretin). Scholars with a social history perspective (Volker Press, Peter Moraw) abandoned the legal terminology behind and referred to the ‘Empire as a political system’ (Press) or of ‘the imperial system’ (Reichssystem, Heinz Schilling). Recently, legal definitions moved to the front again, the Empire being referred to as a ‘complementary empire-state’ (Georg Schmidt, 1999) or a ‘state defined by the rule of law’ (Johannes Burkhard, 1998); but such perceptions were denounced untimely attempts to re-initiate ‘a new discourse in the mould of national history’, inspired by the German re-unification of 1989 (Wolfgang Reinhard).
b) Modern classification
Today, a political body is classified as a state in terms of the ‘three elements theory’ originally developed by Georg Jellinek. Although not entirely adequate to describe the Empire, the theory is still useful to identify its peculiarities. To begin with, state power or public authority was not concentrated in a single hand, since the king-crowned-Emperor possessed direct powers only over the subjects of his royal manor, ie of his own territories. Although this included the imperial cities, most of the Empire never fell under it, even during the Habsburgs’ rule. Most of the Emperor’s initial regalia had already been transferred to other imperial institutions or (sub)units in the Middle Ages. Likewise, jurisdiction soon became fragmented (privilegia de non appellando/evocando). The reforms at Worms 1495 considerably curtailed the formerly unrestricted rights of the Emperor (plenitudo potestatis), leaving him with only a very limited number of personal prerogatives (iura caesarea illimitata) that he could exercise without the Reichstag’s consent, such as the right to ennoble, to confer academic degrees and to decree university charters.
Feudal law retained its hierarchical structure and formed the legal backbone of the Empire until 1806. However, the Emperor’s position, in his feudal role as king and highest liege, was weak. Unlike England or France, for example, where a fief fell back to the liege upon the death of the vassal, imperial fiefdoms had, effectively, already become hereditary in the Middle Ages, although there was no such legal rule. In fact, the king failed to defend his legal position politically. Equally detrimental was the fact that the rules of succession in the Empire changed from a hereditary to an elective monarchy after the death of Henry VI in 1197, effectively making imperial rule dependent on consent by the estates of the Empire. Plans to create a smaller, politically representative body able to act at all times, the Reichsregiment, failed in 1500–02 and 1521–30, leaving state power on all important matters with the Reichstag, which developed a clearer institutional structure from the 15th century onwards. Attempts to strengthen the Emperor’s position by erecting a centralized imperial bureaucracy, such as the endeavours by the Salian and Staufer dynasties, failed. In the imperial reforms after 1495 it proved also not possible to establish a permanent imperial tax (Reichspfennig) which would have increased financial independence. As the Emperor had not been assigned special imperial lands nor their revenue since the Middle Ages, he could not act unilaterally in respect of fiscal issues. Large territorial administrative districts created in 1500 (Reichskreise) were equally restricted due to their lack of executive organs and sufficient legal competence. Within the Empire, state power in fact lay only with the greater territorial units which arose in the Modern Age, not with the Emperor himself.
Secondly, the concept of ‘a people’ that could be related to a state cannot be applied to the Empire, since there was neither imperial citizenship nor equality before the law. In reality, an individual was confronted with a graded distribution of imperial power exercised by different authorities, of which the Emperor’s was rather small. Whereas the Emperors were unable to wrestle power from the imperial estates, the role of the estates and intermediate authorities within many of the territorial units became less influential after 1500, with the result that a ‘people’ related to a state, at best can be taken to have existed on a decentralized territorial level, but not on the level of the Empire.
Finally, the Empire never had a state territory in modern terms. Before the 15th century, the power of a ruler was a power over people, not over areas. In later times, this perception is no longer correct because the Empire actually consisted of two legally distinct structures that only partially overlapped. Not all of the entities that were connected under feudal law to the Emperor were also connected to the Empire through Reichstag membership. Therefore, whether certain regions of Italy, the Netherlands or even the Swiss Confederation were a part of the Empire was, between 1499 and 1648, a matter of political and juridical argument. Simultaneously, there were territories ruled by a power that did not belong to the estates of the Empire, like Holstein (ruled by Denmark) and Prussia (ruled by the Deutschritterorden/Poland up until the 16th century).
3. Rules, institutions, accomplishments
Nevertheless, the Empire established its legitimacy by means of a complex legacy of legal and social structures developed over time and supported by rules of a frequently ritualized and highly symbolic character. Legal positions could conflict with each other, be exercised jointly, or be dormant. Within the Empire, law could be a rule in writing, or derived from scholarship, or custom; it could be territorially limited, as in the Stadtrechte (town laws), or ‘common’ (ius commune), it could be a personal privilege, or based on negotiation. There was no universally accepted hierarchy of norms, or definition of legal sources. Legal positions were defended as vested rights, validated by their longstanding existence. The empire, as an entity both enjoying and conferring rights, not only competed with the territories, but also with an abundance of partly autonomous intermediate powers, such as the guilds or universities.
Imperial law in its narrower sense consisted of a few fundamental statutes (leges fundamentals Imperii), the resolutions of the Reichstag (recessus and conclusa imperii, respectively), the decrees, edicts and other measures effected with the involvement of the Emperor, as well as different forms of customary law. Beginning in the 16th century, there was a specialized branch of scholarship (Reichspublizistik) engaged in collecting and analysing all these rules, be they statutes, contracts, judgments, or based on social or political practice. The Empire’s constitution had its written basis in the Golden Bull of 1356, which regulated the election process to the throne and the role of the prince-electors. The greatest success in constitutional politics was probably the Peace of Westphalia in 1648, after the Peace of Augsburg (1555) had failed to prevent the Thirty Years’ War. Above all, it was the strict principle of equal representation that helped the Empire survive despite severe religious conflicts. In 1803, the last significant resolution passed by the Reichstag, the Reichsdeputationshauptschluß, tipped the balance away from the imperial estates towards the big territorial states, thereby paving the path for a confederation of states. After Napoleon had forced the Rheinish Federation (Rheinbund) to withdraw from the Empire in 1806, the last Emperor, Francis II, stepped down and declared the Empire dissolved.
Seen as a framework for peace, the Empire repeatedly tried to suppress feuds (resolutions on Reichslandfrieden in 1103, 1152, 1186 and 1235 until the ‘permanent peace’ of 1495). In matters of criminal law it enacted the Constitutio Criminalis Carolina in 1532, a penal code of major significance, influenced by northern Italian legal scholarship. From the 16th century onwards, the Empire also supported the early precursors to public administration that were appearing in some of the territories. Despite the concept’s slightly misleading contemporary name of gute Policey (itself derived from πολιτεία), it was an approach much broader than covering just the ordinary law enforcement; it embraced all measures aimed at maintaining a ‘good’ social order and general well-being, including morality, population control and fire hazards. Framework legislation was enacted several times, especially in 1530, 1548 and 1577.
In private law, the Empire supported the eventual breakthrough of Roman law in the 16th century. The ancient Roman law had been elaborated by northern Italian legal scholarship and achieved its eventual success—enriched by canon law and other influences—as ius commune and was also often referred to as ‘the Emperor’s law’. Although it was unanimously accepted that the ius commune only applied in subsidio (because local law and customs prevailed), the Empire nevertheless provided a model for territorial and municipal jurisdictions, similar to the framework it had devised in the field of administration (Policey), and so facilitated a form of indirect legal unity. This was aided by a second imperial court set up by the estates in 1495, the Reichskammergericht, as a counterbalance to the older imperial aulic council (Reichshofrat) dominated by the Emperor. Whenever a local rule, or a rule of a particular territory infringed a legal position of an imperial estate or individual, litigation could be initiated at the Reichskammergericht. Those who were immediate to the Empire could always sue; others only when specific infringements had occurred, predominantly violations of the public peace (Landfriedensbruch) and denials of justice. The Court also had appellate jurisdiction over judgments issued by territorial sovereigns, unless this was excluded by special privilege. Today, legal historians clearly see its role in a much more positive light than in the past since the Reichskammergericht contributed considerably to legal unification and transformed political conflicts into legal and scholarly disputes before it was ultimately closed in 1806.
A unifying function is furthermore attributed to the Reichstag, which was permanently institutionalized by the 1495 reforms as a successor to the Hoftage, an older assembly which had evolved from the Emperor holding court. The procedural rules for the imperial diet were only partly written and divided the estates into three collegia of prince-electors, princes (in terms of being the sovereign leader of a principality: princes, prelates, counts) and imperial cities. Since members of the first two collegia were often more or less distantly related to each other, decision-making power lay within the hands of a few families. The Emperor himself was not noticeably more powerful. The procedure was geared towards establishing consent between the collegia and the Emperor (amicabilis compositio). Within the individual collegia, most of the issues, following the 1648 Peace of Westphalia, were settled by majority vote, with the notable exception of religious matters. Formal assent by the Emperor closed the proceedings, resulting in a resolution (Reichsschluss) that was binding upon all the estates of the Empire, including those absent. This combination of majority vote and binding force in absentis replaced the previously required unanimous vote that had been understood as a political contract (quod omnes tangit, ab omnibus approbetur) and hence was crucial for the Reichstag’s credibility as the supreme political authority. In 1663, the imperial diet changed from a convention held at alternating venues to a permanent congress of envoys at Regensburg, thus establishing the Reichstag as an important and highly-formalized forum for political communication by diplomats, while its law-making function receded into the background.
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