12

Justice

FINDING THE LAW

Justice in the Empire

Peace and justice were considered essential to any community throughout the Middle Ages and early modernity, as they are today. The authorities’ capacity to maintain law and order was central to how they were perceived. As in many other respects, the Empire has often been judged as ineffectual, because it favoured arbitration rather than swift and unambiguous verdicts.1 There has also been a tendency to see protest as an intrusion threatening political stability, rather than as a form of negotiation and a check on arbitrary power. Investigating how the Empire handled conflict and disorder reinforces the findings of the two previous two chapters that its social and political structures were closely interwoven. This section examines the conventions guiding conflict resolution across all levels of the Empire’s society. The second section argues that legal and judicial arrangements were primarily intended to find and sustain workable compromises, ideally through reconciliation rather than exemplary punishment. The chapter concludes by questioning how far the Empire remained a viable social and political order by the later eighteenth century.

Justice developed in line with the Empire’s decentralized structure and was influenced by what would later be called ‘public opinion’. Consensus was an ideal throughout medieval Europe, but assumed an unusually significant place in the Empire, because enforcement mechanisms remained weak, necessitating broad acceptance beyond those immediately involved to ensure verdicts were not ignored. The general European pattern saw judicial institutions evolve as part of political centralization, placing them under more obvious central (usually royal) control. The degree of judicial independence thus determined how far justice was politicized. The Empire’s judicial structures were more genuinely independent of central authority, though we will see that this did not mean they were necessarily ‘modern’. Politicization was far less a matter of royal interference than of how far those charged with settling a case were influenced by wider interests.

Justice involved finding laws appropriate to circumstances. From its foundation, the Empire used an eclectic combination of written and unwritten laws. The latter, often labelled as ‘customs’, were not necessarily inferior to written systems, which themselves should not be interpreted as direct precursors to later practice. Medieval lawyers distinguished between lex as law deriving from contracts between rulers and subjects over (usually) specific matters, and ius as law in general expressed variously in statutes, court verdicts, and broader concepts of fairness and justice. These distinctions did not always survive in practice over time, while the situation was further complicated by the fact that written laws remained largely uncodified; even the largest German territories had not completed codification of their own legal systems by 1806, while imperial law existed separately as a bundle of charters, legislation and recorded precedents. The Empire was scarcely unique in this respect: eighteenth-century France had 800,000 laws in 300 separate regional codes.2

Law thus had multiple sources. All were identified with tradition, but this could be (re)invented, allowing considerable flexibility whilst appearing to remain rooted in an idealized past. The disadvantage was the obvious lack of clarity and the almost inevitable delays, especially as both law and judicial procedure adopted written forms during early modernity. Delay could soften the process, at least outside criminal proceedings, by allowing more time for compromise. Consensus also had theological roots. Final judgement was reserved for God, while the perceived imperfections of earthly existence encouraged an emphasis on ‘fairness’ (Billigkeit), rather than abstract justice according to unambiguous law (Gerechtigkeit). In short, participants usually accepted that human life was complex and that both parties shared the blame in many disputes.3

Forms of Law

Much of the Frankish legal system appears superficially modern. It derived in part from ninth-century readings of ancient Roman practice encouraging Carolingian kings to assert the authoritarian ideal of themselves as chief magistrate and law-giver, and to issue written capitularies (see Plate 29). In fact, these were legally binding guidelines relating to specific activities like managing royal farms, rather than comprehensive codes. They were usually issued after consultation with bishops, and (often) counts, and they mixed elements of secular law with moral injunctions for good behaviour.4 They sat alongside a variety of tribal law codes written down by Frankish officials and supposedly embodying the distinctive customs of each of the Empire’s peoples (see pp. 238–9). The codes dealt with major moral and social issues, especially relating to property and its uses, and to crimes against people and objects. They listed compensation in the form of fines to be paid to victims and their relatives, as well as punishments for more grievous offences, especially those against the king or church. For example, a code from 797 imposed the death penalty for those resisting conversion or who cremated their dead according to pagan rites. The capitularies and tribal codes stood in loose relationship to manorial law (Hofrecht), which governed the manorial economy by upholding lordly control over the manor’s management and its dependent labour. Like the capitularies, manorial law was largely a set of guidelines specifying the choice of crops and timing of planting and harvesting. The natural annual cycle of decisions gradually accumulated further precedents as local ‘wisdoms’ (Weistümer) providing further guidance.5

There were two further forms of institutional law. One comprised the rules governing the core activities of the elite and their relations to the monarch: homage, vassalage, fealty, right of counsel, fief-holding and its military and material obligations. As we have seen (pp. 356–65), these rules would be interpreted from the twelfth century as feudal law (Lehensrecht). Some elements originated in Carolingian capitularies, but much derived from royal diplomas and charters issued by the Ottonians and Salians, conferring special legal privileges outlining the rights, benefits and obligations of the recipients, and more generally by extension also the inhabitants of particular fiefs. Like manorial law, much accumulated over time as recorded precedents, for example the verdicts (sententiae) of royal courts in individual cases. The second form was canon law, comprising the body of written laws and accepted practices governing the structure and operation of the church. Thanks to its greater standardization and wider dissemination, this was the most widely available form of written law. As such, it was the primary focus of legal study and commentary, and it influenced decisions well beyond ecclesiastical matters. Canon law was given greater coherence by a twelfth-century Italian monk called Gratian, but the reception of his Decretum was slowed in Germany by the absence of recognized law schools prior to the founding of Prague University in 1348.6

The growth in written law from the eleventh century stemmed from the desire to fix rules and encourage greater consistency of treatment, as well as to accommodate urban growth and the transition from manors to tenancies. Civic law (Stadtrecht) developed to enable towns to manage their own affairs as legal corporations. Village law (Dorfrecht) followed more slowly by the later fourteenth century for the same purpose. Both forms were linked to written charters regulating specific arrangements applying to each community and its relationship to local lords. Emperors issued four general statutes between 1037 and 1158 regulating vassalage and other aspects of feudal relations. Frederick II’s charters of 1220 and 1231 for the ecclesiastical and secular princes were also part of this development.7 Emperors continued to issue specific laws in response to particular cases, such as Henry III, who imposed the death penalty for poisoning and assassination in Italy, and disinherited children from marriages involving underaged brides.8

Ancient Roman law had never been entirely forgotten, but existed only in limited compendia compiled in the early Middle Ages. Scholars began piecing these together in the 1090s, and their efforts received wider attention with the growing significance of Italian and French law schools across the next century. The main impact was procedural: law did not have to be ‘found’ in each case according to local wisdom, but instead already existed as a universally applicable code. The task of identifying the relevant parts and applying these to the specifics of each case was entrusted to lawyers, in turn further accelerating the expansion of higher education to train these experts. This fundamentally transformed individuals’ relationship to the judicial process. Litigants no longer confronted each other directly, but through their legal representatives, while the position of judge shifted from arbiter to someone charged with determining guilt and setting appropriate punishment. The growing acceptance of these principles created ‘common law’ (ius commune) as a secular competitor to canon law as a universally applicable legal system. Common law gained ground thanks to the need for common rules to allow individual communities to decide cases involving outsiders whose local laws were different to their own. This created a tension between common or Roman law and local custom, especially because the growing practice of recording all kinds of guidelines and decisions made changes and discrepancies increasingly obvious. However, written law long remained primarily a tool against ‘bad custom’ rather than a challenge to tradition.9

The political impact of these changes remained ambiguous. They did not necessarily promote centralization, because judges were required at multiple levels within the nascent corporate society. For example, Italian cities quickly incorporated Roman law into their own judicial systems. The parallel development of civic and village law encouraged the acceptance of communities as possessing the right of self-regulation (ius statuendi), which in turn gave shape to the police measures in towns and territories issued to cover activities and situations not legislated for in existing written law (see pp. 534–8). Meanwhile, the complementary character of the imperial hierarchy encouraged princely innovation guided by the public-peace legislation from the thirteenth century.

The famous Mirror of the Saxons (Sachsenspiegel) was written around 1224 by Eike von Repkow, a judge from the Magdeburg area, who compiled a wide-ranging set of precedents, customs and pieces of written law. His text was translated into the south German dialect and influenced a similar Swabian compendium (Schwabenspiegel) appearing in 1275. Both attracted considerable historical attention, but they were really partisan attempts to describe how the Empire worked rather than actual law codes. These only appeared at the start of the fifteenth century, for example in the Tirol in 1404, and represented a new, territorial form of law (Landrecht) drawn up by princes in consultation with their Estates in response to complaints at abuses and inconsistencies. The spread of law codes was facilitated by the growing number of advisors trained in secular, especially Roman, law, who increasingly displaced the clerics previously staffing princely chancelleries. The process of fixing practice in writing accelerated with the advent of printing, which allowed the swift dissemination of multiple copies throughout a territory. Territorial legislation became increasingly ambitious, merging with police measures to cover wider aspects of daily life. For example, the bishopric of Bamberg adopted a uniform criminal code across its territory in 1506. The framers of these codes clung to their original intention of producing a definitive document based on principles considered timeless and unchanging, whilst still protecting local and particular rights. These conflicting aims were never satisfactorily reconciled, while new circumstances added to pressures for revisions. Tirol had replaced its first general code three times by 1474.

The Impact of Written Law

The Reformation renewed the moral impulse behind legislation and encouraged attempts to derive scriptural law (ius scripturae) from the Bible as a blueprint for a godly society. Luther and other Protestant theologians abandoned this after radicalization of the project during the Peasants War (see pp. 592–4). So-called ‘Godly Law’ persisted, but was slowly absorbed within more secular ideas of Natural Law as common underlying aspects of human existence, exemplified by appeals to ‘natural justice’. This process intensified the engagement with Roman law, already gathering pace in Germany since the late fifteenth century when Humanists rejected the earlier, twelfth-century articulation of ancient codes as incomplete, whilst simultaneously abandoning the medieval scholastic practice of trying to harmonize Roman precepts with Christianity. Instead, Humanists now sought to reconstruct the ‘pure’ original Roman version.10

Their scholarly project had direct practical application, because the growth of territorial law codes increased the attraction of a single benchmark to resolve anomalies and to judge complex cases involving different communities. Roman legal concepts were adopted in the procedural ordinances prepared for the two supreme courts established by imperial reform in the 1490s, as well as the Carolina penal code of 1532, and the imperial police ordinances of 1530, 1548 and 1577. Meanwhile, the legally binding decisions of the Reichstag and other imperial institutions were published after 1501 in a semi-official series that ran to over 40 editions. Together, these printed codes and ordinances influenced widespread revision of territorial laws and judicial practice, while the norms and procedures of imperial law were further disseminated through their place in the curricula of the new universities established to train territorial and local officials. In practice, there was still considerable scope for custom to plug gaps in territorial and imperial law, especially as popular ideals of ‘fairness’ enabled custom to be invoked to justify what were often innovatory measures responding to new circumstances.11

The eighteenth century saw the abandonment of earlier attempts to reconcile positive written law with idealized underlying systems of Godly or Natural Law. Instead, law was to be rationalized according to the Enlightened belief in human reason, primarily by removing inconsistencies between local and territorial practice. This explicitly centralized both law and judicial practice, since it involved curbing local initiative to ensure that such inconsistencies did not re-emerge. Enlightened codification was potentially revolutionary, because it moved legitimacy from theology and towards secular ideals of citizenship. The purpose of law was increasingly understood as guaranteeing individual human rights to life and property. Progress was slow, because rationalization encountered the same difficulties as earlier attempts at standardization. For example, Frederick William I abandoned initial attempts to codify Prussia’s laws. His son renewed the attempt in 1746, but work stalled when Prussia’s chief justice died in 1755. A third attempt was made after 1780, culminating in the promulgation of the famous General Law of the Prussian Lands (Allgemeines Landrecht) in 1794. The use of the plural ‘lands’ for the components of the Prussian monarchy indicates the continued force of tradition, which extended to preserving the nobility’s corporate status.12

Austria separated its administration and judiciary only in 1749, but each province continued to use different laws. General criminal codes were issued in 1768 and 1787, but the process of codifying the monarchy’s legal systems was abandoned in 1766 after 13 years of work, because Joseph II realized a uniform code would require a similarly uniform judicial structure, which, at that point, seemed beyond the realm of possibility. Work resumed once he changed his mind in 1780, but it took another 31 years to complete.13Similar initiatives in other territories either failed, halted after partial codification, or simply drew together existing practice in a single document without addressing inconsistencies. In short, the development of law mirrored that of the Empire generally in that it created multiple, partially conflicting and overlapping systems arranged in a complex hierarchy that defied rational logic.14

JURIDIFICATION

Conflict Resolution

It is characteristic of the Empire that the transition to written law consolidated a decentralized form of conflict resolution, rather than a centralized judiciary deciding right from wrong according to abstract principles. In doing so, it ‘juridified’ much earlier forms of conflict resolution by reshaping them along more bureaucratic and institutional lines without losing the emphasis on preserving peace through workable compromises. Like other aspects of the Empire’s corporate society, these practices were found across the socio-political hierarchy, establishing attitudes and behaviours that persisted even after individual territories slipped beyond the direct reach of most imperial institutions.

Our sources are sparse for much of the Empire’s medieval legal history, and mostly present what their writers thought justice should be rather than how it was actually applied. For its first five centuries, the Empire’s inhabitants were less concerned with identifying which law had been broken than determining who had been wronged and how. Judgements might refer to specific documents, like the charters cited in Otto II’s ruling on a property dispute in favour of the abbot of San Vincenzo on the Volturno in 981.15The authorities also recognized that writing was necessary to record decisions and could be produced to challenge earlier verdicts. However, decisions usually invoked law only as a generality underpinning their authority. The key questions remained the status of those involved and the jurisdiction they fell under, while practical issues predominated over learned legal debate.

Medieval chronicles record so many disputes that it is easy to get lost in the detail of individual cases. Nonetheless, it is possible to detect three recurring issues. One concerned perceived failures relating to the hierarchy of rights and responsibilities, including the duty of those of higher status to protect the powerless, and the especially grievous charge of felony, defined as a vassal’s improper behaviour towards a superior lord. A key element in the latter was infidelity, which involved a breach of loyalty, such as abandoning a lord in battle or failing to follow a summons, especially if called repeatedly. Other serious felonies included disturbing the peace through excessive force, or entering into relations injurious or offensive to one’s overlord, for instance by accepting vassalage from another lord without permission. Rebellion was defined as open defiance or attacks on a lord’s friends or clients. Felony amongst immediate lords included actions undermining the honor imperii, such as those of Balderich, who was removed from his post as margrave of Friaul in 828 for neglecting frontier defence against the Bulgarians.16

A second category involved disputes about status and honour, which defined the relationship of individuals and communities to the broader socio-political order. This type of conflict was pronounced in periods of rapid socio-economic change, notably the later eleventh to twelfth century, and again in the later fourteenth and later fifteenth centuries. Disagreements over jurisdictions formed the third category and were endemic to the growth of a denser, more complex hierarchy of lords and communities. Such disputes involved access to resources, the exercise of mint, toll and tax rights, as well as judicial powers themselves. These last two categories of dispute reflected the local and personal character of justice for most of the Empire’s history. Jurisdiction was determined by the social-legal status of the parties involved, varying not just between major corporate social groups like clergy, nobility and commons, but also according to the specific character of the litigants’ local rights. Late medieval police regulation and early modern territorial law incorporated military personnel, courtiers, palace servants, public officials, university staff and a host of others as groups enjoying distinct legal status. The nature of the offence provided another variable, determining whether a case should be heard before civil, ecclesiastical, feudal or some other kind of tribunal. Complex cases often made it difficult to decide which court or law applied.

The Empire’s legal history is essentially a story of delineating these responsibilities and aligning them with the evolving status hierarchy, whilst sustaining consultative processes and collective enforcement of decisions. Justice was already decentralized and local under the Carolingians, something that is scarcely surprising given the population’s dispersal over a wide area with poor communications. In the ninth century, counts handled secular cases within their counties, acting as judges (Schöffen) who both passed and enforced verdicts (placita). The counts’ judicial function declined as their authority shifted towards hereditary lordship from the tenth century, and there was no direct continuity between the Carolingian county structure and the territorial superior jurisdictions that emerged in the thirteenth century (see pp. 365–77). One factor in this change was the Ottonians’ grant of immunities from comital jurisdiction to the inhabitants of episcopal towns. Another was the practice of abbots and bishops to issue their own guidelines for the dependent populations of their benefices.

The Ottonians continued the Carolingian ideal of the king as chief magistrate and their law court continued to take precedence wherever it went during the monarch’s progress around the realm. However, local jurisdiction was permanent and (increasingly) hereditary, whereas royal judicial authority remained itinerant and by the twelfth century related to a monarchy which was clearly elective.17 The king’s real role was to embody idealized justice through exemplary action in serious cases, with a secondary function to intervene if lesser authorities failed to resolve problems satisfactorily. Kings retained considerable initiative, especially over deciding how and when to intervene, as well as the prestige to annul local decisions by, for example, claiming they were based on ‘bad custom’. Kings could also transfer custom from one area to another: Henry III rejected a complaint from some Bohemians that he was breaking agreements made by one of his predecessors by arguing that every king added new laws.

However, kings were rarely able to decide weighty matters unilaterally, because they were expected to be guided by ‘good counsel’. Occasionally, tenth-and early eleventh-century kings overruled grumbling lords, but usually they favoured consensus, since verdicts generally considered just stood a better chance of being accepted and enforced.18 For this reason, royal court verdicts were signed by all who had participated in making them. This practice was replicated in courts chaired by dukes, counts and other lesser magistrates. Wrongdoers were expected to provide satisfactio commensurate with the offensio they had caused. For much of the early Middle Ages, redress was often in the form of material compensatio. The authorities’ role was to oversee and adjudicate this process, ensuring that perpetrator and victim agreed ‘reasonable’ terms. Morality provided certain guidelines, notably that the ‘poor and defenceless’ were not to suffer, nor should a weaker party be crushed entirely, even if in the wrong. How this applied in practice was another matter.

Felony and Infidelity

Cases involving felony and infidelity were the ones that really mattered to the Empire’s highly competitive elite, because no lord could allow affronts to go unpunished without losing face. Prior to the emergence of Estates society in the eleventh century, honour was reserved to the free minority who alone were considered fully responsible for their actions, entitling them both to be rewarded with respect for good behaviour and to be punished for misdemeanours. However, contemporaries recognized that a free person’s disobedience could be a reasonable protest at a perceived injustice, for example a lord’s neglect of his vassals’ legal rights. This imparted a similar dynamic to medieval disputes within the elite as would be displayed in popular unrest after the high Middle Ages: protest was a way to oblige authorities to change their behaviour or provide redress. At all social levels, most disputes involved posturing, as the interested parties mixed symbolic assertions of the legitimacy of their case with demonstrations of their material power, including the controlled use of violence. The aim was to rally support whilst undermining their opponent’s position. There were broadly understood stages of escalation, with higher authorities usually only becoming involved once a cycle of reprisals had deepened into a longer-running feud, by which time it was often difficult to distinguish ‘right’ from ‘wrong’.19

The king or senior lord usually acted cautiously. If he was not immediately party to the dispute, he could encourage those involved to accept his mediation. If the case concerned him directly, he would invite a relative or other influential figure to act as a discreet broker. These practices are fundamental to the Empire’s character as a mixed system. Rebellions were not about lords resisting the creation of a centralized monarchy, but personal disputes amongst the Empire’s ruling elite. Royal justice was thus not ‘neutral’, but part of a dynamic process by which the elite resolved contentious issues.

Leading vassals could be summoned to form what would later be called a ‘feudal court’ (Lehenshof), composed of the peers of those involved in the dispute. The king could preside or deputize the role of judge. The accused would be summoned to account for their actions. During the Ottonian era such courts generally refrained from formulating clear charges, allowing those involved to compromise without losing face by presenting the dispute as a misunderstanding. The Carolingians and Salians tended to act more clearly as judges from the outset. Nonetheless, judicial authority remained primarily moral rather than institutional, encouraging compromise by stigmatizing those flouting the rules. Excessive violence or failure to appear before the court was construed as placing that party automatically in the wrong, enabling the authorities to dispense with a formal hearing and proceed immediately to punishment. This practice became enshrined by early modernity as the concept of ‘notoriety’, whereby an individual demonstrated their guilt through wanton disregard for accepted norms. Those identified as guilty this way could be branded in absentia as a public enemy (hostis publicus) in a practice that had become known by early modernity as the ‘imperial ban’ (Reichsacht): they were declared outlaws, suspending any rights or legal protection, voiding any contracts and freeing any dependants, servants or subjects from any obligations. The purpose of this process was to isolate the accused, depriving them of support, and thus reducing the need for violence to apprehend and punish them.20

The dispute between Otto I and his son Liudolf illustrates these methods. As always, the causes were complex and included disagreements between father and son over intervention in Italy, and Liudolf’s anxiety for his inheritance following his father’s second marriage in 951. Liudolf signalled his protest by boycotting the family’s Easter celebrations in 952, an action intended to undermine Otto’s standing among the aristocracy. The latter, however, largely rallied to Otto, showing their support by attending his court. Bolstered by their presence, Otto issued an ultimatum to Liudolf and his principal ally, Conrad the Red, duke of Lorraine (who was also Otto’s son-in-law): both were to attend the royal court to answer for their actions, or face the consequences. Following their failure to appear, Otto deprived Conrad of his duchy, but initially refrained from issuing a verdict against Liudolf. Both sides rallied their vassals and began a series of raids and other military operations intended to demonstrate strength and lend weight to negotiations discreetly brokered by the archbishops of Mainz and Cologne. Conrad eventually accepted the loss of Lorraine in return for a royal pardon. Increasingly isolated, Liudolf pre-empted another summons from his father by seeking him out whilst hunting near Weimar in 954. Having begged for mercy, Liudolf was pardoned, partly as a public show of family solidarity in the face of a renewed Magyar invasion.21

Conrad the Red’s removal from office (Absetzung) represented the standard punishment for serious felony cases. The evolution of the Empire’s elite into hereditary lords made this quite complicated. The Ottonians distinguished between revoking a fief (and its associated title and jurisdictions) and the fate of the culprit’s own property. Whereas they generally spared the latter, the Salians were more likely to confiscate allodial possessions as well as revoking a fief, and in extreme cases extended expropriation to the assets of wives and relations. Early medieval kings imprisoned some felons by entrusting them to the supervision of loyal abbots or bishops. Wayward royal relatives could find themselves shut up in isolated monasteries. Banishment was often preferred, removing an individual from their local networks without the cost of imprisoning them. Excommunication could supplement banishment by excluding the culprit from the community of believers. Death was possible, but was rarely used for senior lords, though lesser vassals were executed for perceived serious offences. Death sentences were passed far more frequently than they were implemented, because medieval kings could gain prestige by commuting them as an act of clemency, though this became less common under the Salians and Staufers. Lesser lords and commoners were always treated less favourably. Louis II ‘the German’ hanged so many criminals that the archbishop of Mainz was forced to institute special measures to stop the corpses becoming a health hazard.22

There was no fixed scale of punishments, partly due to the secondary and incomplete character of written law at this point, but also because cases were judged according to circumstances. Repeat offenders were treated more severely, but the authorities were also conscious that continued punishment of the same family over several generations could stoke dangerous resentment. Above all, the outcome had to be enforceable, otherwise those involved would lose face. Harsh verdicts might tip opinion against the king and possibly encourage wider protest. However, the Empire’s monarchs remained more than first among equals and, contrary to the standard interpretation of decline, there was no reduction in their ability to depose truculent vassals (Table 15).23 Emperors deposed twice as many vassals as the kings of West Francia (27 cases from 844 to 958) and three times the number in Lotharingia (17 cases from 843 to 958).

Ottonian and Early Salian Arbitration

The later Carolingians’ continued assertion of themselves as supreme judge stemmed from their relative weakness and direct involvement in many of the disputes they claimed to adjudicate. By contrast, the Ottonians’ greater stability allowed them to adopt a more open-ended form of conflict resolution relying more on mediation than confrontation. A key element in this was the practice of ritual submission known as deditio whereby the wrongdoer publicly acknowledged his guilt by prostrating himself before the king and begging for mercy, as Liudolf did with his father in 954. Charlemagne had pardoned enemies, but only as a mitigation of their punishment. For example, the rebellious Bavarian duke Tassilo III was forgiven at an assembly in Frankfurt in 794, but still deposed and imprisoned in a monastery. On other occasions, death sentences were reduced to blinding. Charlemagne’s son Louis the Pious appears to have been the first to alter this practice by inventing a new ceremony of ritual humiliation when faced by a rebellion of his own son, Lothar, in 834. Louis needed to reverse his own humiliation at the hands of his three sons who had forced him to do public penance the previous year. Having gained the military upper hand, Louis forced Lothar to prostrate himself, in return for being forgiven and accepted back into the political elite.24

Table 15. The Removal of Immediate Vassals

Monarch  

  Reign  

  Number of Depositions  

   Charlemagne   

  768–814  

10  

   Louis ‘the Pious’   

  814–40  

20  

   Louis ‘the German’   

  843–76  

  9  

   Carloman and Arnulf   

  876–99  

11  

   Zwentibold and Louis ‘the Child’   

  899–911  

  9  

   Conrad I   

  911–18  

  3  

   Henry I   

  919–36  

  0  

   Otto I   

  936–73  

27  

   Otto II   

  973–83  

  6  

   Otto III   

  983–1002  

  5  

   Henry II   

  1002–24  

13  

   Conrad II   

  1024–39  

  9  

   Henry III   

  1039–56  

    6  

The ritual of deditio was ostentatiously emotional, with tears of contrition both signalling submission and calculated to encourage a formal pardon from a king who risked losing face by failing to show clemency. Likewise, a king’s public rage was not necessarily anger or a childish inability to control emotions, but a public signal that an opponent had overstepped the mark. The risks for both sides encouraged discreet negotiations to arrange terms in advance, which were performed in a carefully choreographed ceremony symbolizing the restoration of a harmonious order. This practice was unusual in medieval Europe, with only one case being identified for England prior to the Norman Conquest.25 However, it remained restricted to the elite, and lesser vassals were likely to be treated harshly, as exemplified in 998 by Otto III’s execution of Crescentius and his ritual humiliation and imprisonment of the anti-pope John XVI (see pp. 50–51).

Harsher Justice

Two anecdotes exemplify a shift to a harsher justice after the mid-eleventh century. As we have seen (p.524), Conrad II delayed his journey from his election to his coronation in 1024 to hear petitions from a peasant, a widow and an orphan, despite the advice from his entourage to hurry on. Contemporary commentators used (or invented) this episode to praise Conrad for being more interested in justice than his own dignity. The newly crowned Frederick Barbarossa was accosted in 1152 by a retainer who hoped for a pardon for a past fault. Despite throwing himself on the floor, the plaintiff was ignored by the king, who was praised by Otto of Freising for his ‘constancy of opinion’ in not allowing himself to be swayed from the proper application of the law by special pleading.26

One of the reasons for this change was the risky character of the deditio. Henry IV’s experience at Canossa in 1077 appears to have dissuaded him from using this practice again.27 The collapse of trust between Henry and his senior lords was another factor, particularly as the breach deepened into prolonged civil war, making it difficult for individuals to serve as neutral mediators. The adoption of a more sacral style of kingship after 1002 widened the political distance between the monarch and senior lords and encouraged a shift from Christian mercy to Old Testament severity. Behaviour changed as well, and it became politically unacceptable for a king to cry in public. Further factors included eleventh-century church reform and a papacy that now insisted on unconditional obedience, and the accompanying heightened morality that shifted general judicial practice from compensating victims to punishing the guilty.

Henry VI’s cruel punishments were not a personal quirk, but a consequence of this longer-term trend that inhibited the earlier acts of clemency. Faced with widespread opposition soon after his arrival in Sicily in 1194, Henry had his opponents tortured and executed, or deported to Germany. His rival, William III, was blinded and castrated, ritually rendering him unfit to be king. After a rebellion in the Norman mainland in 1197, Henry had prisoners sawn in half or drowned at sea. Frederick II employed similar methods to reassert authority after the civil war of 1198–1214, and again after the Apulian revolt of 1230. His assizes court convened at Capua in 1220 banned feuds, requiring all disputes to be adjudicated by royal judges. The 219-paragraph Constitution of Melfi, promulgated in August 1231, was Europe’s first comprehensive secular law code. Based on Roman law, it applied only to Sicily and Naples. While aspects of Staufer practice appear modern relative to the Empire, they also reflect the particular circumstances of their rule over the former Norman kingdom. Norman rule was itself only a few generations old, while that of the Staufer rested on a conquest that remained contested into the mid-1230s.28

The trend to harsher justice was not universally welcomed. Otloh, a Regensburg monk, attributed Henry III’s death to divine punishment for ignoring the petitions of the poor. The poor certainly felt the growing severity, as lords regarded any opposition as an affront to their status. Archbishop Anno II of Cologne provoked a revolt by requisitioning a merchant ship without prior consultation in 1074. He allowed his soldiers to pillage the merchants’ houses as a reprisal. Anyone resisting was killed or bound in chains. The ringleaders were blinded, while others were whipped and shorn. Finally, the entire population was required to perform ritual penance as an admission of their ‘guilt’.29

Pacifying the Empire

The Salians’ concept of themselves as Christ’s vicars encouraged an ambitious goal of what commentators in the 1040s already called a ‘general pacification’ (magna pacificato) of the Empire. The impulse came from the monarch, unlike the Peace of God (Pax Dei) movement that spread through France from Aquitaine after 975 as bishops responded to increasing violence. Having tried to persuade secular lords to renounce force, the bishops switched after 1027 to a more pragmatic Truce of God (Treuga Dei), requiring participants to forswear violence from Thursdays to Monday mornings.30 These ideas only reached the Empire in the 1080s when they were largely rejected by bishops along the western frontier who refused to participate in regional truces organized by their French counterparts.

Henry III’s project appears to have been entirely independent, even if some of its methods were similar to the Truce of God. Henry’s peace was royal and central, not episcopal and local. Embracing sacral kingship, Henry demonstrated his commitment to peace as a good Christian by praying and admonishing his subjects to live in harmony. However, this was backed by royal power through harsher, exemplary punishments for those breaching the peace. Pardons were still possible, for example for Gottfried ‘the Bearded’ during the 1040s, but his partial restoration as duke of Lorraine after a rebellion was as a special indulgence issued by Henry on his exclusive authority as king, and not through a symbolic submission brokered by other lords. This explains why some clergy accused Henry of vanity on the grounds that true peace was only obtainable in heaven, while others condemned the royal peace as a pax perniciosa, because it had not been arranged with the bishops.31

Henry’s initiative stalled, since his death in 1056 was followed by his son’s long minority and subsequent problems. Henry IV did use his authority to broker regional, temporary peace pacts in Saxony (1084), Bavaria and Swabia (both 1093), while bishops made similar arrangements through synods in their diocese: Liège (1082), Cologne (1083) and Mainz (1095). None of these measures was particularly effective given the cycle of civil wars throughout the later stages of Henry’s reign. Lack of success fuelled the anti-Henrician propaganda of royal failure.

The Public Peace

Henry responded by promulgating the first ‘public peace’ (Landfrieden) at Mainz in 1103 with the backing of the dukes of Bavaria, Zähringen and Swabia. Intended to last four years, this was already broken by renewed rebellion early in 1105. However, it would be wrong to dismiss it as a failure. Henry had resumed his father’s peace policy, but adapted it to the Empire’s new political balance, initiating a form of peace-keeping that would shape imperial political and judicial practice until 1806. His successors promulgated similar measures, though no copies survive before Barbarossa’s public peace of 1152. The preservation of this text was due to a major effort to disseminate its terms in writing to all bishops, counts and margraves. It was renewed in 1179, and followed by further, more restricted versions in 1186 and 1223, before Frederick II issued another general peace in 1235.32

All these measures intended a general pacification of the Empire rather than the local truces attempted in France. Each measure was agreed by the king at a general assembly of major lords who swore to uphold it. The impulse was the widespread desire to surmount the cycle of civil wars between 1073 and 1106 by replacing violence with more peaceful arbitration. Crucially, the king now submitted to the peace himself, rather than trying to stand above it like Henry III. Henry IV’s experience demonstrated that reliance on force merely lent credence to his opponents’ charges of royal tyranny. The last two Salians and their Staufer successors wanted to place opponents in the wrong as potential peace-breakers. Meanwhile, promulgation through an assembly obliged those present to assist in upholding it. Crusading ideology preached since 1095 also played a part for both Conrad III and Barbarossa, who embraced the pope’s call for peace amongst Christians to enable warriors to go to the Holy Land. Finally, the measures reflected new concepts of peace itself. In the early Middle Ages, it was believed that peace was best established by allowing each social group and community to be left undisturbed in possession of its rights. This legitimated the feud that was intended to assert rights against those who ignored or usurped such rights. By the twelfth century, peace was understood more in terms of right and wrong, with all violence perceived as a direct threat to tranquillity.33

However, this development did not mitigate the trend towards harsher justice. The 1103 public peace incorporated bloody punishments, including blinding or amputation of a hand for theft, robbery and extortion, while those directly breaching the peace were to be maimed and deprived of their property and fief. These penalties were not simply for deterrent effect; they were considered fairer than the earlier system of fines, which the poor found harder to pay.34 While the public-peace legislation reinforced the emperor as supreme judge, this was not a role he was either willing or able to perform often. The emperor was involved in settling at least 150 cases in royal towns across 1101–1254, including 80 in the last 30 years of that period.35 This gives a small indication of the potential total volume of business across the Empire, which was clearly beyond the capacity of any medieval king to handle. The public peace was intended to free the king from the burden of lesser cases, whilst reserving to him those involving princes and other immediate lords.

Worldly imperfections were fully recognized in the temporary nature of each public peace. A king was not expected to enforce verdicts, leaving those involved free to accept his judgement or find their own settlement. For this reason, the public peace retained the option to feud. This approach was pragmatic, encouraging peaceful resolution, whilst recognizing this was not always possible given that disputes involved not just the pride and ‘face’ of those immediately concerned, but that of their clients and supporters.36Violence was permitted, but contained and channelled through measures intended to ensure that those using ‘excessive’ force forfeited the legitimacy of their case. For example, the 1235 peace contained clauses to protect economic activity by guaranteeing the safety of royal highways even during a feud.

The idea of the public peace survived the Staufers’ demise, because it represented a practical way to confront violence whilst protecting the interests of those charged with enforcing it. King William issued one in 1255 as part of his alliance with the Rhenish Civic League, while Richard of Cornwall promulgated another in 1268.37 Rudolf I and his successors renewed these measures, either for the entire Empire (1287, 1290, 1298), or for specific regions (1276, 1281, 1289). Renewed conflict after 1298 interrupted these developments, which resumed under Charles IV, who renewed the general peace in 1354 prior to his Roman coronation journey. The Golden Bull consolidated existing practice by charging the electors with upholding the peace and making peace maintenance the primary task of future leagues and unions in the Empire.38

The Emergence of a Judicial Hierarchy

Royal peace initiatives helped realign judicial practices with the emerging status hierarchy and the needs of a society structured more obviously into corporate Estates. The 1231 charter to princes gave dukes, bishops, counts and margraves expanded magisterial powers, not only over their own vassals and servants, but over virtually all the inhabitants in their jurisdiction. In the longer term, this represented an important step in territorializing princely power. More immediately, it adjusted conflict management and resolution to the new division of labour, since the princes were now charged with judging infractions according to the definition of crimes and scale of punishments agreed in the public peace. This change clearly identified princes as exercising powers of corporal punishment (Blutsgerichtsbarkeit), and helped identify their courts as superior, since such cases had to be referred to them from the localities. Combined with mint, toll, tax and other rights, these new powers were important elements in marking the princes as a distinct status group. Concern for status helped make the system work, because the desire to deny outsiders excuses to intervene was a powerful incentive for princes to keep their own jurisdictions in order.39

Generally, a two-tier judicial hierarchy developed within these princely jurisdictions by 1300. The lowest tier emerged as lords retreated from direct management of towns and villages, which established local courts chaired by mayors. These usually met four times a year to judge a broad range of disputes and crimes punishable mainly by fines.40 A second, higher tier emerged with the development of districts as administrative subdivisions within princely fiefs. District courts were chaired by officials representing the prince, and usually had a circuit (Gericht-sprengel) of up to ten villages that they toured to hear more serious cases. A third tier appeared around 1500 as superior territorial courts were established, either as a Hofgericht chaired by the prince, or as a ‘territorial court’ (Landgericht) under an appointed judge. These central courts institutionalized the central exercise of ‘bloody jurisdiction’ across an entire territory, regardless of its formal division into different fiefs. The establishment of these superior courts was usually underpinned by additional imperial privileges, such as those granted to Trier in 1458. The hierarchical structure was mirrored in the imperial and free cities where a lesser magistrates’ court (Ratsgericht) handled minor transgressions like breaches of civic ordinances or building regulations, while a superior ‘city court’ (Stadtgericht) judged serious crimes like murder, arson, theft or rape, and could impose corporal punishment.41

While varying considerably in detail, all courts adhered to broadly similar norms and procedures. Judgement by peers had already been part of Ottonian practice and continued as trial by 7 to 12 jurors selected from upstanding members of the community. The judge was assisted by a clerk, while by the fifteenth century cases could be brought by an official prosecutor as well as by a plaintiff. Despite the trend to more formalized, written procedures, the emphasis remained more on mediation than determining guilt and punishment. In some regions, jurors were required to seek an amicable settlement prior to a case coming to court. Cases involving insult or slander used a process called ‘sending’ (Beschickung) in which a third party was delegated to ask what the offender had really intended. Neighbours were expected to engage in ‘saving’ (Retten), intervening to break up fights and prevent serious harm.42

Appellate Justice

The development of a longer judicial hierarchy extended the open-ended character of justice by enabling cases to be appealed against or referred to superior courts for additional adjudication. Already from the twelfth century, the new towns founded east of the Elbe would call on their ‘mother cities’ for legal advice, while the spread of universities after 1348 led to difficult cases being referred to law faculties, which functioned by 1530 as a kind of appeals court.43 These practices evolved in consequence of the division of judicial labour intended to free the emperor to concentrate on disputes among the princely elite. Appeals to the emperor became a special, restricted privilege already in the Staufer era. Frederick II appointed a royal Justiciar in 1235 to relieve him of the burden of judging cases himself. Although this post lapsed during the 1250s, it was revived in February 1274 as permanent, yet with a more restricted remit for cities and counts but no longer princes, whose disputes were still judged by the monarch.44 The advisory council developed into the Kammergericht (cameral court), which accompanied the king on his royal progress and had its own chancellery (Kanzlei) to record proceedings.

The limited remit of royal justice encouraged additional local initiatives, particularly in response to the greater social unrest and political disorder of the fourteenth and fifteenth centuries. The most notorious were the freelance courts called Veme operating between 1300 and 1450 in Westphalia and sometimes beyond in areas rarely visited by the king. These were largely self-appointed courts, but were protected by the archbishop of Cologne and sometimes enjoyed royal sanction to uphold the public peace. They met openly if the accused appeared voluntarily, but otherwise convened in secret and in practice served as vehicles for Westphalia’s nobles to consolidate their local and regional power. Their potential was limited and they disappeared once open opposition from Frederick III dissuaded local princes from allowing them to hear further cases.45

The public-peace measures of 1383 and 1389 adjusted to the development of more clearly delineated territorial judicial systems by grouping these on a regional basis prefiguring the Kreis structure adopted after 1500. In contrast to thirteenth-century practice binding princes to uphold the peace through their feudal obligations, the 1383 measures envisaged associations of all immediate lords acting more autonomously to maintain order in their own region. This development was backed by the princes, because they, rather than the knights and towns, were primarily responsible for judging serious cases in their region. These measures could be effective: Count Dietrich von Wernigerode was executed by his peers in 1386 for breaking the peace.46 After the efforts at a general peace in the 1380s, similar measures continued to be made on a regional basis after 1400, but were hindered by princes’ growing reluctance to submit their disputes to arbitration. As we have seen (pp. 398–9), the result was an escalation in violent feuding that spread from the elite to other sections of society.

However, all late medieval associations continued the culture of collective conflict resolution and peace enforcement. The Swabian League’s court handled 250 cases across 1488–1534, three-quarters of which involved disputes between different status groups, like towns and princes.47 Cases involving disputes with non-members often proved difficult if these refused to acknowledge the court’s jurisdiction. Consequently, demands for more effective royal justice became a central element in imperial reform. Initial efforts in 1442 faltered, but Frederick III secured successive extensions of a new general public peace after 1465. Following 1467, breaches of the peace were treated as crimen laesae maiestatis, effectively stigmatizing them as rebellion and allowing those responsible to be placed under the imperial ban. The Turkish menace was invoked to enjoin Christians to stop fighting each other and combine against the infidel.

The prospect of more severe punishment added pressure to establish a more effective appellate court as a final tribunal ensuring that public-peace cases were handled fairly. The Kammergericht had suffered from the general dissipation of regalia rights since the 1370s, when the post of judge was often pawned to princes allied to individual emperors. For example, Frederick III transferred it to successive bishops of Passau between 1461 and 1470, and then to Archbishop Adolf II of Mainz. Like the modern practice of entrusting public functions to semi-private agencies, operators had an incentive to improve efficiency by reducing costs and boosting receipts through fees and fines. Calls for a permanent, independent court grew louder from 1471, but serious problems only emerged when no one was willing to assume the franchise after Adolf’s death in 1475.48

The Reform of Imperial Justice

Negotiations at royal assemblies after 1486 led to the promulgation of the eternal public peace in 1495. Like the rest of imperial reform, this was a compromise combining past practice with genuine innovation. The peace’s eternal character was less significant than the ban on feuds and all forms of violent self-help as a legal means of redress, shifting debate away from the legitimacy of individual feuds to condemning the entire practice. A second innovation was the creation of a new permanent supreme tribunal officially called the ‘Emperor’s and Empire’s cameral court’, but generally shortened to Reichskammergericht (see Plate 33).49 The court was given a printed procedural ordinance, completed on 7 August 1495. Personnel were sworn in on 31 October and they heard the first case three days later, indicating that the Empire could act swiftly when the necessary consensus was there.

Several additional features make the Reichskammergericht appear more modern than its equivalents in other European countries. It was independent from the royal household, moving instead between various imperial cities before settling in Speyer after 1527 until that city was sacked by French troops in 1689. The court reopened four years later in Wetzlar, where it stayed until the Empire’s demise.50 The court’s independence was enhanced by how its judges were selected. The emperor named the presidingKammerrichter, but the other Assessoren were nominated by the imperial Estates, who were obliged to cooperate through the new Kreis structure to present candidates to the court, which, after the very first appointments, made the final choice itself. Personnel swore loyalty to the court, not to the lords or cities that had nominated them, and there is considerable evidence that they acted genuinely independently and collectively.51

The Reichskammergericht’s jurisdiction covered Germany and initially also Burgundy, but not Switzerland (see pp. 588–9) or Italy. One task was to uphold the eternal peace by adjudicating disputes amongst all individuals and communities enjoying the status of imperial immediacy, thereby largely rendering regional peace leagues redundant. As previously, each immediate authority was charged with keeping order within its own jurisdiction through the hierarchy of local, district and territorial courts. The Reichskammergericht’s second task was as a final court of appeal for cases from these territorial judiciaries. This aspect operated unevenly across the Empire according to the varying degrees with which each territory had secured the Privilege of Not Appealing (Privilegium de non appellando  ) since 1356 when the Golden Bull exempted the electors’ subjects from the jurisdiction of the royal Kammergericht in return for their establishment of territorial courts of appeal.

Other princes’ claims for exemption on customary grounds were rejected, and they had to negotiate their own separate privileges with the emperor, creating a new concession that could be traded for political support. Usually, only limited privileges were granted, still reserving important cases for the Reichskammergericht. Privileges were important mainly for prestige reasons, and required princes to establish their own appeals structures. Some princes acquired so-called ‘unlimited privileges’ in the eighteenth century, but prior to 1803 even these did not exclude all appeals, while the Reichskammergericht could intervene regardless if territorial courts broke their own procedures or denied subjects justice.52 The most extensive immunity was the exemption of the entire Burgundian lands as part of the wider demarcation of Habsburg possessions in 1548, and based on the existence of a permanent Burgundian appellate court in Mechelen after 1504. Immunities could be revoked, most notably those of Mecklenburg following an appeal by the duchy’s Estates against the duke in 1785. This case is particularly significant, because the ruling denied the duke’s claims that his privileges rested on the Peace of Teschen (1779), which had been guaranteed by France and Russia.53

The Reichskammergericht was joined by the Reichshofrat as a second supreme court established in Vienna by Maximilian I in December 1497 to safeguard the judicial aspects of his imperial prerogatives. The new court was not universally welcomed and effectively disappeared with Maximilian’s death in 1519. Ferdinand I reconstituted it by detaching responsibility for imperial prerogatives from the Habsburgs’ own territorial superior court in 1559. Unlike the Reichskammergericht, the Reichshofrat was entirely staffed by Habsburg appointees and had jurisdiction across the Empire, including Italy, on the basis that the emperor was feudal lord of all those with imperial immediacy. It was not intended to compete with the Reichskammergericht, but soon strayed into its business because issues arising from fief-holding, like inheritance disputes, could become breaches of the peace. Additionally, the court exercised the emperor’s prerogatives of grace and pardon, allowing it to expand its remit to include appeals from territorial subjects by the later sixteenth century. Its closer relationship to the emperor encouraged plaintiffs who hoped verdicts in their favour would be backed by the full weight of Habsburg power.54 To reduce friction, cases could not be transferred between the two courts by litigants seeking more favourable verdicts. In practice, disputes were often so complex that several parallel proceedings ran simultaneously.

The Impact on Judicial Practice

The Reichskammergericht profoundly influenced judicial practice throughout the Empire, as did the Reichshofrat once it caught up by adopting written procedures in 1559. At both courts, the presiding judge assigned cases to ‘senates’ (panels) of legally trained ‘assessors’, who received written memoranda and arguments submitted by lawyers representing the contending parties, in a complete contrast to the oral, face-to-face confrontational process prior to 1495. Both courts could empower commissioners to gather additional evidence, including taking witness statements. These methods were copied by territorial courts, which also changed their procedures in criminal cases to follow the 1532 Carolina code in standardizing inquisitorial methods and shifting the obligation to prove guilt from the accuser to a prosecutor.

The changes were not universally beneficial, for example making it far easier to level accusations of witchcraft without fear of punishment if they could not be proved. The greater emphasis on establishing guilt encouraged the widespread use of torture to extract confessions, directly contributing to the ‘witch craze’ as prosecutors sought to identify others involved in what were believed to be communal deviant practices. Neither the Carolina code nor the territorial codes derived from it offered much protection against arbitrary arrest and often a denunciation was sufficient, especially if the accused belonged to rootless or marginal social groups. German territorial courts executed 22,500 alleged witches during the sixteenth and early seventeenth centuries, mostly through the failure of local authorities to follow official inquisitorial procedures or to restrain over-zealous prosecutors. Since witchcraft was defined as a crime and so was reserved to territorial ‘bloody jurisdiction’, the imperial courts could only intervene on grounds of procedural irregularities, but they managed to curb prosecutions in some areas.55

As inquisitorial practice became more sophisticated, the need for torture decreased well ahead of its official abolition in most territories during the eighteenth century. The authorities still used harsh measures, such as locking up suspects until they confessed, but also undertook detailed investigations, especially in complex cases. The Sachsen-Hildburghausen contractor Moses Schimmel was asked 1,500 questions during his interrogation on corruption charges between 1771 and 1775, with his answers carefully recorded in six volumes of court documents.56

The 1495 Reichskammergericht ordinance was revised in 1521 and 1555, but subsequent changes remained administrative and financial, not legal, because confessional controversy made it politically difficult to alter judicial procedures. New procedural rules were ready by 1613 only to founder on lack of agreement in the Reichstag, though they were unofficially adopted in 1654 when the Reichshofrat also received a revised ordinance. Consequently, the imperial courts remained guided by the sixteenth-century understanding of Roman law and failed to match new legal thinking that increasingly shaped how territorial courts operated. This was not as serious as it might first appear, because both imperial courts remained primarily tasked with brokering viable compromises rather than reaching definitive verdicts. More problematic was their adherence to secret hearings and decisions published without explanations, because it was feared transparency might undermine their authority. This helps explain why Reichskammergericht verdicts in the sixteenth-century ‘religious cases’ encountered so much opposition, fuelling the controversy that hamstrung the ‘visitation’, or monitoring, process through the Reichstag after 1588. The next visitations were not conducted until 1707–14 and 1767–76, and were primarily concerned with the court’s internal administration and finance. The Prussian judiciary began explaining its verdicts after 1793, and some imperial judges soon copied this unofficially.57

Neither court was well staffed, considering they served over 20 million people by the eighteenth century. The Reichshofrat had 14 to 20 judges at any one time in the sixteenth century, rising to 25, backed by 34 chancery staff, after 1600. These met three to four times a week, considering up to 20 cases each session. The Reichskammergericht was likewise overburdened, and its staffing levels were a constant issue at the Reichstag. It was at or close to full complement between 1566 and 1610, falling to a low point between 1648 and 1713 when there were never more than 13 judges in post, forcing its temporary closure from 1704 to 1709. Official staff levels were halved in 1720, but individual pay was doubled and a real effort was made to avoid future vacancies; something that was achieved consistently after 1782 (Table 16). Total staff numbers were larger at around 150, with an additional 50 legal trainees and solicitors helping with the paperwork.

Table 16. Official Reichskammergericht Staff Levels

Date  

  Kammerrichter  

  Presidents  

  Assessors  

1495   

1  

–  

16  

1555   

1  

2  

24  

1566   

1  

2  

32  

1570   

1  

2  

38  

1648   

1  

2  

50  

1720   

1  

2  

25  

Case Load

Given the staffing problems, the case load is astonishing. Details survive for about 80,000 Reichskammergericht cases, but the total was probably higher, while the Reichshofrat handled around 140,000 cases, of which files still exist for about half. The overall volume of cases was greater still, because each court also dealt with revisions and renewals of existing cases, for instance tripling the Reichshofrat’s total business. The relative balance fluctuated, with the Reichshofrat generally receiving more cases each time the Reichskammergericht was in difficulties. The extension of immunities reduced the proportion of new cases reaching the Reichskammergericht from four-fifths to half or less of its business, but it was still handling more cases annually in the early 1800s than it had around 1500, while the Reichshofrat managed a threefold increase across the same period.58

Inevitably, a considerable backlog developed, drawing hostile comment, especially after 1806. According to Goethe, there were 50,000 unresolved cases and a further 20,000 pending before the Reichskammergericht in 1771, but these figures are wildly inflated. Although the actual total cannot be reconstructed, the court had cleared the entire backlog by 1780. Around 4,000 Reichshofrat cases built up by the mid-1760s, mainly due to the Seven Years War, but these had been resolved by the end of the decade, during which time it handled 10,000 new ones. (By contrast, the backlog before the European Court of Human Rights reached 150,000 in 2012.)59 Some cases took years to resolve: 4 per cent of those introduced at the Reichskammergericht in the late sixteenth century were still ongoing a century later. Again, this requires interpretation, because the task was not to ‘solve’ them, but to encourage peaceful settlement, with prolonged engagement in practice being successive adjustments according to changed circumstances.

Both courts could appoint commissioners who could act quickly and forcefully if life was endangered. Court mandates could be backed by troops mobilized through the Kreise. Brokerage was more common, with mediation accounting for 42 per cent of all Reichshofrat commissions under Ferdinand III, while 54 per cent of those handled by Württemberg across 1648–1806 were for the same purpose, compared to just 15 per cent to enforce verdicts. Enforcement relied on the cooperation and compliance of the imperial Estates, both those entrusted with this task and those affected by the case. The difficulties this entailed increased the desire for workable solutions, which were generally achieved, and probably no more than a hundred decisions of both courts combined remained unenforced across the Empire’s last 150 years.60

Preserving the Peace

Most of the cases involving those with immediacy stemmed from dynasticism, which changed princely inheritance practices. For example, attempts to divide the possessions of the Ernestine Saxons in 1680 produced 61 Reichshofrat cases across 1699–1730 just involving the Sachsen-Coburg branch, while disputes amongst Lippe-Detmold’s ruling family contributed 65 Reichskammergericht cases between 1613 and 1783. Questions of inheritance, marriage, guardianship and maintaining relatives accounted for 30 per cent of all Reichshofrat commissions from 1637 to 1657, or twice the number of cases over territorial rights, and six times more than those about feudal rights. Again, imperial judicial practice reflected wider social characteristics: ordinary inhabitants made increasing use of the lesser courts to resolve similar status and inheritance disputes.61

Only a tiny minority of cases resulted in the imposition of the imperial ban. The 1495 Reichstag authorized the Reichskammergericht to ban those breaking the peace, but in practice the emperor always insisted on doing this through the Reichshofrat. The 1559 Reichstag abandoned earlier efforts to assert the imperial Estates’ involvement, and allowed the emperor to issue a ban without a prior hearing on the basis of notoriety. This proved unproblematic when employed against individuals like the knight Wilhelm von Grumbach, who appeared a public menace (see pp. 559–60), but Ferdinand II’s use of these powers as a political weapon during the Thirty Years War caused considerable disquiet.62 Nonetheless, later emperors continued to ban opponents, notably during the War of the Spanish Succession, until Charles VI agreed at his accession in 1711 that he would consult the Reichstag in future. Prussia’s invasion of Saxony in August 1756 put this to the test, because Austria hoped to use this clear breach of the peace to ban Frederick II, thereby providing grounds to deprive him of his possessions in the event of victory. Prussian sympathizers blocked the motion in the Reichstag, which simply sanctioned peacekeeping mobilization.63 This was an exceptional case. The Reichshofrat threatened the ban on 160 occasions after 1559, but only imposed it nine times, five of which were at the start of the Thirty Years War.64

The ban was rarely necessary, because open rebellion was extremely unusual in the early modern Empire, while the Reichshofrat was able to impose meaningful sanctions through its normal judicial process, for example deposing at least six princes between 1684 and 1727. Charles VII agreed at his accession in 1742 to consult the Reichstag before deposing further princes, but both imperial courts continued to remove princes on criminal charges on the basis of their ‘bloody jurisdiction’ over immediate vassals, deposing four princes this way between 1770 and 1793.65

Defusing Social Tension

The courts’ remit was expanded considerably by the 1526 Reichstag’s ruling that complaints from ordinary subjects could be appealed provided certain procedures were observed. Passed in response to the Peasants War, this measure achieved its goal of channelling protest away from open violence and towards resolution through judicial and administrative review. This process has been labelled ‘juridification’ and involved a fundamental change in behaviour at all social levels.66 Lords had previously used violence to assert authority and status. Feuding had been criminalized in 1495 and now repression was likely to be condemned in the courts. For example, the duke of Württemberg was obliged to return his troops to barracks after his subjects protested in 1701 and 1765, while the prince of Nassau-Siegen (1707) and the duke of Mecklenburg (1728) were both deposed after they used their soldiers to seize their subjects’ property in disputes over taxation and religious freedom.67

The authorities generally perceived that the new practices were in their own interests, since the wider imperial framework allowed them to call on their neighbours’ military assistance should their own subjects fail to restrict their protests to judicial channels. These principles were incorporated into territorial judicial procedures. For example, despite Austria’s effective exemption from Reichskammergericht jurisdiction, its legislation extended rights of appeal through its own courts to common inhabitants in 1579. Thus, both the Empire and its constituent territories practised a form of ‘peasant protection’ (Bauernschutz) by inserting the courts between ordinary folk and lordly exploitation.

These changes were not universally welcome. Recourse to the courts often appeared part of the problem, not the solution, thanks to the costs, time and uncertainty involved. It also contradicted the faith that a benevolent ruler should respond promptly and positively once informed of his subjects’ distress. Access to appellate justice was accompanied by curbs on direct petitioning, making the courts appear to be new barriers between inhabitants and princes. Courts were also staffed by nobles and educated commoners, both same groups wielding socio-economic power. Although the imperial courts operated on the principle of ‘presumed liberty’, considering people to be free unless proven otherwise, it was often difficult for ordinary folk to provide written evidence to refute lordly claims on their labour and produce.68

The appeals system did not eliminate violence, particularly as frustration could build through delay and explode if the courts did not produce the expected justice, as we have observed in Saxony in 1790 (pp.601–2). While nothing matched the Peasants War, there were major revolts in Upper Austria in 1594–7, 1626 and 1632–6, as well as in Bavaria in 1633–4 and 1705–6. All but the first of these events were exacerbated by war. Otherwise, protest was largely confined to five waves of unrest in smaller territories broadly correlating with hunger crises and wartime taxation: 1650–60, 1700–1716, 1725–33, 1752–66 and 1767–77. Beyond these, there were at least 30 major disturbances in imperial cities after the sixteenth century, as well as numerous smaller incidents, including 55 in Hessen and 380 in Ansbach-Bayreuth from the mid-seventeenth to the late eighteenth century.69 These all paled in comparison to the general revolts in Bohemia (1679, 1775), Hungary (1660s, 1671–81, 1703–11) and Transylvania (1784) under Habsburg rule.

Outside the Habsburg lands, violence was generally contained. Peasants and burghers used strikes, petitions and bluster, often alongside court cases, in carefully coordinated strategies to pressure the authorities into conceding demands. The significance of juridification lay in opening formal channels of communication, and encouraging acceptance that clear, simple answers were unlikely to resolve complex problems. The courts recognized that absolute verdicts could escalate violence. For example, the Reichshofrat rejected the bishop of Basel’s appeals for a final verdict in his favour against his Estates in 1730–33, because this would have made his subjects desperate.70 This helps explain the length of many cases, in which the imperial and territorial superior courts acted more as mediators than as institutions seeking to determine guilt or innocence.

Neither this nor the enlightened reforms of the later eighteenth century were a conscious strategy of ‘defensive modernization’ intended to reform from above to avert revolution from below.71 None of the Empire’s numerous authorities predicted what was coming after 1789, but many were certainly anxious. The prince of Hohenzollern-Hechingen was at loggerheads with his subjects over feudal demands after 1584 in what became one of the Empire’s longest-running disputes. Disagreement increasingly focused on his attempts to use forced labour to extend and maintain his hunting grounds, a move that simultaneously curtailed peasants’ access to the territory’s forest. Efforts to confiscate the peasants’ hunting guns stirred such opposition that the prince feared revolt and called in Württemberg troops during the 1730s. However, repeated recourse to the Reichskammergericht managed the situation, upholding the prince’s feudal jurisdiction, but halting his repressive measures. Württemberg was obliged to recall its troops, and future intervention only proceeded with official sanction as peacekeepers organized through the Swabian Kreis. Violence was largely avoided and a new prince ended the dispute in 1798 by renouncing feudal jurisdiction over all but one particularly recalcitrant village.72

The emphasis on the local and particular was thus double-edged. It provided all the Empire’s social groups and communities with opportunities to achieve real gains by basing their demands on specific, identifiable rights. For example, the Reichshofrat imprisoned Count Karl Magnus of Grehweiler for ten years after he had forged his subjects’ consent to huge loans for his building projects.73 More powerful rulers, including those in Mecklenburg, Württemberg, Bavaria, Sachsen-Weimar and Reuss, also lost cases in the second half of the eighteenth century. However, the aversion to abstract, absolute ideals fragmented protest, preventing both politicization and thus the likelihood of violence, but also isolating those involved from potential allies. The Hechingen peasants failed to obtain support from inhabitants in neighbouring territories, despite often similar problems there. Differences over strategy also weakened popular movements, contributing to factionalism within communities.74

The Hechingen case illustrates a second general point: popular unrest and court intervention were both most frequent in the Empire’s smaller territories. Kornelimünster abbey, with just 5,000 subjects, produced 200 Reichskammergericht cases, while nearly a fifth of the 1,100 cases from Lippe-Detmold to the same court across 1522–1806 were brought by subjects against the prince or his officials.75 Like the intervention of imperial debt commissions (see pp. 544–5), court involvement was a consequence of these territories’ underdevelopment. The small scale of such territories placed ruler and ruled in close proximity, leaving few intervening administrative layers to defuse tension. Above all, the absence of appellate courts necessitated direct recourse to imperial justice: 833 of Lippe’s cases were appeals.

Peasants generally developed a favourable view of the Empire’s supreme courts, whose adherence to standardized procedures often contrasted with seemingly capricious seigniorial justice. Lords, especially in smaller territories, had tried to assert social distance by manipulating their judicial powers, placing themselves above the law, whilst dispensing clemency periodically to win acceptance of their elevated position. Juridification after 1526 bound them within a system beyond their personal control. It objectified justice, removing or at least lessening the impact of individual circumstances, especially as imperial law applied to all and was widely disseminated through print.76 Although governance still involved brokerage, this was now less personalized and blatant since it ran through institutionalized channels, rather than through vassalage and patrimonialism. Territorial authorities were represented more by public officials than the prince. Official claims to impartiality gained some credence when real results were obtained, and individual officials rejected prevailing prejudices about peasants as naturally unruly. Adherence to common core values enabled even elementary differences to be fought out without straining the existing order, which all parties recognized as legitimate.

The Rule of Law

The famous German ‘state under the rule of law’ (Rechtsstaat) was thus a product of the Empire’s long evolution, and not a reaction to the French Revolution. The existence of the Rechtsstaat explains why most inhabitants felt French-style revolution was unnecessary or even harmful. The imperial courts safeguarded access to law and equal treatment in the judicial process, but not full legal equality. Most people continued to regard injustice as an unwarranted disruption of a harmonious order, refusing to accept that conflict was inherent in all unequal socio-economic power relations. Judicial intervention stabilized the Empire, both curbing violence and perpetuating gross inequality. Society remained local, corporate and hierarchical. In fact, the courts were increasingly called upon by ordinary people in the later eighteenth century to defend local privileges against the rationalizing, levelling ambitions of territorial governments seeking more equal, but also more intrusive, relationships with their inhabitants.77

Late eighteenth-century critics condemned the Empire’s judicial framework as confusing, and incapable of effective protection through its lack of a single, uniformly applicable legal code. However, as we have seen (pp. 608–10), territorial codification was slow and failed to improve individual security. On the contrary, the wider protection of imperial appellate justice was removed in 1806 without any alternative safeguards being installed.78 Writing in May 1806 on the eve of the Empire’s dissolution, the Habsburg official Joseph Haas praised ‘the judicial power [which] was, until now, the shining jewel of our constitution. Two imperial courts, whose counsellors were appointed with great care and were free of external influence, competed with each other in the impartial administration of justice, and gave even the lowest subject right against the most powerful prince.’ Haas predicted that once this system was removed, there would be nothing to protect individual and corporate liberties from the relentless drive for fiscal-military efficiency: ‘there is no doubt [that] canals will be dug, roads laid, avenues and parks, theatres and pools created, cities illuminated, [and] we will shine and starve. The only robbers threatening the subjects’ property will be the tax collector and the French and German soldiers.’79

BETWEEN EQUILIBRIUM AND INSTABILITY

Corpses and Funeral Pyres

By the time Haas submitted his memorandum, many felt the Empire was nearing its end. However, when this came just three months later, it was no Götterdämmerung, with a redemptive leap into the funeral pyre involving a final battle to forge a bright new future. Instead, the Empire fractured incrementally under relentless French battering. Contemporaries were fully aware that internal weaknesses hastened this process, if not directly causing it. In the subsequent search for explanations for central Europe’s subjugation to French imperialism, it was easy to blame the Empire that had disappeared rather than the princes who survived as rulers of larger, fully sovereign states and who, as Haas predicted, were free to silence their critics.

The overwhelming conclusion after 1806 has been that the Empire had been dead already since at least 1648, if not 1250, and now ‘stood like a corpse . . . ready to crumble at a touch’.80 This interpretation usually contrasts a supposedly moribund imperial structure with the alleged dynamism of the larger German territories, notably Austria and Prussia. The recent, more positive reappraisal of the Empire has the advantage of reflecting the lack of any sense of impending crisis prior to 1790, but has pushed revisionism too far in the opposite direction. Both approaches still view the Empire in dualist terms, underestimating how far social and political structures were entwined. Although substantially altered, much of the Empire’s pre-modern social structures outlived it for several decades at least. This historical debate exists precisely because the situation remained open in the late eighteenth century. Many problems were surfacing, but they were not immediately life-threatening. Some institutions were no longer compatible with circumstances, or were too inflexible, while others gained new momentum as they tackled immediate problems. This section explains why it proved so hard for those with a vested interest in the Empire to envisage any other political structure for central Europe.

The German State Sickness

Many commentators believed the Empire’s form had outlived its substance by the mid-eighteenth century. Whereas princely governments were housed in palaces built in the fashionable baroque or rococo styles, the Reichstag still met in Regensburg’s gothic town hall. The contrast was not lost on contemporary visitors: the publicist Friedrich Nicolai remarked that the hall ‘is like the German Empire itself, old, rambling and decayed’ (see Plate 20).81 Whereas mid-seventeenth-century engravings depicted the hall full of people, later eighteenth-century illustrations showed it empty, reflecting the demise of a culture of personal meetings as the imperial Estates preferred written communication. Even the bishop of Regensburg, who lived a few streets away, was represented by an envoy, while many smaller territories entrusted their mandate to others to save paying diplomats. Six of the 51 imperial cities no longer even did this, while already in 1764 the 161 votes were collectively exercised by just 35 envoys.82

The same applied to other imperial institutions. One Reichskammergericht judge dismissed his own court’s decisions as ‘nothing more than worthless pieces of paper’, while Joseph II felt that ‘justice always gives way to politics; a wrongdoer, provided he is sustained by force, can go unpunished and be notorious without incurring disrepute.’83 Even the indefatigable Johann Jacob Moser, who devoted virtually his entire life to studying the Empire, abandoned his original project of describing the constitution because of the blatant discrepancy between theory and practice.84

The most influential criticism was that in Johann Heinrich Zedler’s article ‘German State Sickness, or the State Sickness of the Holy Roman Empire of the German Nation’, published in 1745.85 Zedler’s claim that the Empire displayed ‘unconventional forms of governance’ essentially continued Samuel Pufendorf’s earlier term ‘monstrosity’ (see pp. 279–80). Nonetheless, Zedler’s article exemplified the growing trend to describe the Empire by listing what it lacked compared to a centralized state: a permanent army, swift justice, uniform fiscal and legal structures. Moreover, Zedler’s biological metaphor chimed with philosophical currents that increasingly saw the world in organic terms, rather than the mechanical universe popular in seventeenth-century thought. By 1806, some leading intellectuals expressed the sense that the Empire had been sick for a long time and that its doctors had long given up hope. Goethe’s mother wrote two weeks after Francis II’s abdication that the news was not unexpected, ‘as when an old friend is very ill’. Later historians have expressed similar views that the Empire died ‘a “natural” death’ from old age, rather than having been murdered by Napoleon.86

Criticism of the imperial constitution was boosted by Prussian propaganda during the Seven Years War, which included a new edition of Chemnitz’s tract from the 1640s presenting the Empire as an aristocratic federation. A tract entitled Why Should Germany Have an Emperor? (1787) advocated abolishing the imperial office as a relic of medieval barbarism and a barrier to enlightened progress.87 Although exceptional, its anonymous author nonetheless represented the new perception of historical time, involving a sharper and generally hostile characterization of the ‘Middle Ages’ between the flowering of classical civilization and its revival in the Renaissance. Enlightened thought expressed renewed faith in human progress provided it could be unshackled from the fetters of tradition.

The Reform Debate

The implications of these ideas only became obvious during the French Revolution and Napoleonic Wars. Before then, most commentators found it difficult to see beyond the established order that still guided all reform plans. Corporate rights and local identities were still anchored in the imperial constitution, which remained the underlying source of legitimacy for the entire socio-political order. As we have seen (pp. 599–602), there was little enthusiasm for alternatives, like popular sovereignty, or equality as a new basis for liberty. The relatively open and vibrant public sphere provided opportunities for thousands of contributors to discuss all kinds of reform, the sheer volume itself being a sign of the Empire’s continued importance.88 The debate was conducted across the Empire and involved all confessional groups and was generally constructive. Criticism usually focused on specific faults, in contrast to debates in France that increasingly attacked the entire monarchical system. The absence of radical suggestions was not due to ignorance of other political systems, because the open and extensive press and periodical literature disseminated information fairly freely. For example, Germans were informed about England through Hanover and its influential university at Göttingen, but few advocated reforming the Empire along the lines of the English constitutional monarchy. Friedrich Carl von Moser and Prince Leopold Friedrich Franz of Anhalt-Dessau simply suggested adding an elected lower house to the Reichstag, while Hegel proposed converting the existing civic corpus along similar lines.89

The more realistic proposals all envisaged some kind of princely league as a vehicle for renewed imperial reform. Interest was strongest amongst the middling territories like Mainz, Sachsen-Weimar, Baden, and smaller secular principalities like Anhalt-Dessau or Zweibrücken, who all felt increasingly powerless in the face of Austrian and Prussian expansion. Leagues were not seen as alternatives to the Empire, but as ways to improve coordination and prevent status disputes from undermining the weaker principalities’ collective weight in existing institutions. For example, the Reichstag’s princely corpus temporarily suspended its work in February 1780 after a dispute over who should exercise the votes for the duchies of Westphalia and Franconia, even though these no longer really existed as territories. League proposals after 1770 drew on new ideals of friendship emerging from late Enlightenment and early Romantic thought, which blurred earlier distinctions between political, literary and scientific activity, and advocated freer forms of interaction outside the now rigid status hierarchy. The League of Princes (Fürstenbund) emerged from a personal meeting between Leopold Friedrich Franz of Anhalt-Dessau and Carl Friedrich of Baden in July 1782.90

Leopold Friedrich Franz expressed the reform programme through laying out a 100-square-kilometre park at Wörlitz. Opened to the public, this was intended to appeal to both the senses and the intellect by mixing English-style landscaped gardens with ‘scientific’ model farms into a composite without any specific focal point, in deliberate contrast to the baroque formal gardens designed to present a centralized order. Wörlitz thus expressed the smaller princes’ argument that regional diversity, not standardization, was the best route to progress.91 Other measures were more immediately practical and were intended to present smaller principalities as model states to disarm arguments for annexation on grounds of efficiency that were voiced during the First Partition of Poland (1772). The ecclesiastical territories were often at the forefront of such reforms, because they felt most vulnerable. Following serious fires in 1781, the bishopic of Paderborn combined various insurance schemes into a single society backed by the government to cover property worth 2.3 million florins. Mainz replaced charity with state welfare in 1785, providing free maternity cover for unmarried mothers and other enlightened measures not seen in many other Catholic states until the late twentieth century.92

Concrete proposals for wider reform of the entire Empire were rather thin, and the potential of the League of Princes has been overestimated since it suggested nothing beyond tinkering with existing arrangements.93 The Reichskammergericht was to be overhauled by another visitation, while the Kreise were to be rationalized by adjusting membership, revising quotas to align more closely with actual wealth, and to incorporate Bohemia and Silesia as additional Kreise to force Austria and Prussia to contribute more. Other ideas included imposing additional curbs on imperial prerogatives at the next election, or backing Prince Max Joseph of Zweibrücken-Birkenfeld as next king of the Romans, a suggestion that was not totally far-fetched given that he was heir to both Bavaria and the Palatinate, which he had inherited in 1799.

Some proposals would have weakened existing structures by widening princely autonomy, for instance by transferring responsibility for imperial debt commissions from the Reichshofrat to committees of princes. A few proposals involved more fundamental reform in specific areas. Carl Theodor von Dalberg, the future imperial arch-chancellor, started revising the 1532 Carolina penal code as a National Law Book after 1787, and advocated abolishing serfdom, customs barriers and guild restrictions, all of which would have struck at the heart of corporate society.94 Most were reluctant to go that far. Saxony only joined the League of Princes to preserve its existing status, while Justus Möser and other writers struggled to reconcile enlightened ideals with corporatist hierarchical structures.95 The new princely sociability was still exclusive, indeed more so than some earlier forms. Unlike the fifteenth-century reform era, the middling princes did not cooperate with counts, knights or imperial cities in their proposals, justifiably raising suspicions about their true motives. Several proposals simply ignored the right of ecclesiastical princes to their fiefs, and proceeded immediately to considering how to legitimate their expropriation.

It hardly inspired confidence that Landgrave Wilhelm IX of Hessen-Kassel asserted inheritance claims by invading the tiny principality of Schaumburg-Lippe in 1787, a year after joining the League of Princes. A Reichshofrat verdict, backed by Prussian, Hanoverian and Cologne diplomatic pressure, secured a bloodless withdrawal and obliged the landgrave to pay reparations.96 While this appeared to demonstrate the efficacy of existing institutions, unrest in Liège between 1789 and 1791 revealed serious defects in the Empire’s peacekeeping system, as neither the courts nor the Kreis Assemblies could compel Austria and Prussia to cooperate. Prussia recognized the Belgian revolutionaries’ declaration of independence in January 1790, making it hard for Austria to call on the Empire to restore order.97

By then, princely reform efforts were losing momentum. They faced the same problems as Luther and the other reformers in the early sixteenth century who were unable to reform the Catholic church without papal cooperation. None of the princes wanted to leave the Empire, but equally none could interest the Habsburgs in imperial reform. Unlike Maximilian I or Charles V, neither Joseph II after 1780 nor his two successors had any incentive to change existing arrangements. Reform was more likely to make the Empire harder to manage, rather than increase its material benefit to Austria. Despite Joseph’s sometimes rough treatment of the ecclesiastical princes and other minor Estates, Austria still appeared their more natural ally than Prussia or the middling princes. Austria could count on 65 votes in the electoral and princely colleges between 1785 and 1792 compared to 43 likely to side with Prussia, while the cities overwhelmingly backed the Habsburgs.98 Any chance of princely sponsored reform ended with the Convention of Reichenbach on 27 July 1790, which established an Austro-Prussian alliance of convenience lasting until April 1795. Another separate league of middling princes was proposed at a meeting in Wilhelmsbad in September 1794, when it was hoped this might attract British financial backing, but the scheme was soon scotched by Austrian diplomacy.99

The Absence of Revolution

The lack of popular pressure for change was a significant factor behind the conservatism of the reform proposals. Burghers made growing use of the Reichshofrat to resolve disputes in their cities, while 28 per cent of all cases brought by peasants to the Reichskammergericht were initiated after 1750. Increased recourse to the supreme courts indicates greater acceptance of their role in conflict resolution, rather than evidence of a mounting crisis. Baron Knigge, organizer of the conspiratorial Bavarian secret society known as the Illuminati and a revolutionary sympathizer, wrote in 1793 that the long duration of Reichskammergericht cases allowed passions to subside, while ordinary people retained faith in eventual redress. This, he felt, was why ‘we in Germany probably should not expect a dangerous political revolution’.100

The Empire’s inhabitants viewed the French Revolution with a mixture of complacency, panic and, for a few, admiration. Many mistook the Liège, Belgian and Saxon revolts in 1789–90 for the spread of revolution to the Empire – not surprisingly, since protesters sometimes copied French slogans and symbols. A ‘liberty tree’ mysteriously appeared in Paderborn town square one night in 1792 with a notice exhorting the inhabitants to throw off the yoke of their aristocratic oppressors. Two years later, rioting peasants demolished the prison in Gesmold, Lower Saxony, as if it were a local Bastille and demanded ‘freedom and equality like in France’. French émigrés deliberately fanned the authorities’ fears, hoping to enlist the German princes for a counter-revolutionary crusade.101 In fact, there was little enthusiasm for the kind of changes enacted in France: no one heeded the notice in Paderborn, while the Gesmold peasants dispersed once they felt they had made their point. Protesters’ aims remained conventional, and the level of unrest did not increase despite the rapidly escalating burdens of war after 1792.

‘German Jacobins’, or open supporters of revolution, were a ‘tiny minority within a small minority’ of French sympathizers.102 The absence of support is not surprising given the prevailing hostility to republicanism and individualism. French bourgeois equality with its inviolability of property suggested the horrors of an unfettered free market strongly at odds with the moral economy of the Empire’s regulated corporate society. A republic was briefly established in Mainz after French troops captured the city in 1792. Some German Jacobins envisaged extending this to the whole of the Empire, or reorganizing the Empire to exclude Austria and Prussia. Although they embraced French centralist ideas, some were still guided by elements of the imperial constitution. Christoph Friedrich Cotta, a former imperial publicist turned Jacobin, advocated converting the Reichstag into an elected parliament.103 French ideas were soon discredited by news of the accompanying violence and escalating terror. The French occupation of the Rhineland after 1792 made their freedom appear even more despotic than the rule of Louis XIV, whose troops had devastated the same region a century before. Animosity deepened with forced requisitioning and other demands across the next 20 years, cementing anti-French stereotypes that persisted into the mid-twentieth century.104

Most believed that a combination of imperial justice and progressive reforms by territorial governments had made revolution unnecessary. Although the Reichstag adjourned for its summer recess a few weeks after the storming of the Bastille on 14 July 1789, the Empire’s multilayered structure enabled effective coordination of security measures through the Kreise, which established a military cordon on the western frontier and tightened censorship after August 1789.105 It took war to force change on the Empire. The French revolutionaries abolished feudalism on 4 August 1789, though full implementation was delayed until 1838 by the difficulties of defining exactly what ‘feudalism’ was.106 The decree affected various Rhenish princes like the bishop of Speyer and landgrave of Hanau-Lichtenberg, who still possessed extensive jurisdictions and property in Alsace and Lorraine. The peace treaties transferring these territories to France in 1648 and 1738 had remained within the spirit of early modern European relations by leaving these rights intact. The French revolutionaries now asserted the modern notion of absolute sovereignty to argue their decree applied everywhere in France, whereas the princes clung to older ideals of fragmented sovereignty to defend their extra-territorial rights. Preoccupied with domestic problems, the revolutionaries initially offered financial compensation, but the Rhenish princes unwisely insisted on full restitution. The other imperial Estates were reluctant to risk war over the issue, while Prussia manipulated the controversy as part of its general policy of causing trouble for Austria. By the time Leopold II offered to negotiate in December 1791, it was too late, as leadership of the revolution had passed to men who saw it as their duty to export their ideas and who regarded war as a solution to the mounting problems in France.107

Prussia Stands Alone

France initially only declared war on Austria on 20 April 1792, planning to conquer the Austrian Netherlands, which was still in ferment over opposition to local Habsburg administrative reforms. Austria bought Prussian support for a counter-offensive by agreeing to its annexation of Ansbach-Bayreuth (the childless prince of which retired to live with his English mistress on a Prussian pension). The joint invasion of France stalled at Valmy in September, a battle celebrated as a great revolutionary victory, but which consisted principally of the French army not fleeing from the Prussians, who retreated after losing only 184 men.108 This famous failure of nerve broke the Austro-Prussian offensive, but there had never been a real chance that the invaders could have crushed the Revolution. War resumed after the French regicide on 21 January 1793, with Austria and Prussia on the defensive and distracted by continued mutual rivalry over Poland’s fate. The two German great powers combined in March 1793 to force the Reichstag to declare war on France, thus legitimating their exploitation of collective security to bolster their own flagging military effort.109 Thereafter, the Empire’s fate depended to a considerable extent on Austrian and Prussian policy.

Prussian ministers were inhibited by personal rivalries from formulating a consistent policy, something that merely heightened Austrian suspicions.110 The Hohenzollerns’ advisors were profoundly unsettled by events, but their yearning to restore politics to a more predictable course compelled them to confront Prussia’s relationship to the Empire. They concluded that ‘old German liberty’ and the Empire’s ‘decrepit constitution’ were creating the same weaknesses which they were busy exploiting in Poland to carve up that country. Although their proposals went further than those voiced in the earlier reform debate, they still only envisaged streamlining rather than dissolving the Empire. The ecclesiastical and minor territories were to be distributed amongst the secular principalities, while the territorial Estates were to be abolished to remove them as constraints on the ability of rulers to raise taxes and reshape society. The most famous of these proposals was submitted by Carl von Hardenberg on 5 February 1806 and was intended to simplify imperial politics by reorganizing the Empire into six, more geographically logical, Kreise, in turn grouped into three federations led by Austria, Prussia and Bavaria under the emperor’s overall leadership.111

Prussia’s ministers hoped to salvage something of the old order, not create a German nation state. They wanted a viable Empire that could contain Austria and ensure Prussia’s security, especially given the unreliability of allies like Britain and Russia. Prussia even restored autonomy to Nuremberg in September 1796 after briefly annexing the city without permission.112 The ministers were aware of the contradictions between what they thought best for the Empire and their own desire to aggrandize Prussia, but were reluctant to choose between these goals until compelled by military failure and state bankruptcy to make a separate peace with France at Basel in April 1795.113 Prussia was thrust into a semi-imperial role by agreeing with France to convert northern Germany into a neutrality zone. Unable to pay its own troops, Prussia fell back on imperial structures to corral the northern imperial Estates into funding an ‘army of observation’ to uphold neutrality, including convening a combined Upper and Lower Saxon Kreis Assembly at Hildesheim in 1796. Northern Germany experienced Prussia’s presence as a foreign occupation, and longed for a restoration of pre-war conditions.114

Meanwhile, Prussia had reduced its debt by 22 million talers to 33 million by 1806, while making considerable territorial gains during the reorganization of 1801–3, appearing ‘to have achieved the dream of every gambler: to win without betting’.115 The establishment of a more stable French government, known as the Directory, in 1795 did not bring the expected normalization of relations, and Prussian envoys still found the situation in Paris confusing. Even after 1803, ministers hoped that continued Habsburg imperial rule would prevent Napoleon establishing vassalage over southern Germany, and so rejected a French offer in October 1804 to convert the neutrality zone into a Prussian north German empire.116

Austria and the Empire

Many later German historians quietly ignored the catastrophic impact of Prussia’s withdrawal into neutrality after 1795, arguing instead that the Empire was already dead and criticizing Francis II and his chief minister Baron Thurgut for placing Austrian above ‘German’ interests.117 Like his Prussian counterparts, Thurgut already contemplated major changes, including secularizing the three ecclesiastical electorates. Similarly, he struggled to reconcile saving the Empire with advancing Habsburg objectives. His successors after 1800 were even more determined to save the old order, especially Johann Philipp Stadion, who became foreign minister on 25 December 1805. Like his brother Friedrich Lothar, who was Habsburg envoy for Bohemia at the Reichstag after 1803, Johann Philipp was an imperial knight with a deep attachment to corporate society. Baron Hýgel, Austria’s primary Reichstag envoy after 1793 and an ennobled burgher, shared this sentiment and oversaw the crucial effort to save the imperial insignia from advancing French troops in 1796.118

France’s revolution was a serious setback for Austria, robbing it of its principal ally since 1756; cementing that alliance had been the reason Francis II’s daughter Marie-Antoinette had married the future Louis XVI in 1770. Meanwhile, Austria engaged in a costly and largely unsuccessful war against the Ottoman empire between 1788 and 1791, mainly to please Russia, whose friendship was vital in holding Prussia in check. The failure of the Austro-Prussian offensive in 1792 convinced Thurgut that Austria was engaged in an existential struggle requiring an entirely new approach. As war resumed early in 1793, he wrote: ‘the Empire is lost and can only hope to be rescued by Austria and Prussia. Consequently, these powers are entitled to establish a permanent order in the Empire even without asking the imperial Estates.’119 Austria’s temporary understanding with Prussia after 1790 gave Thurgut a unique opportunity to dispense with the customary wrangling to secure half measures, and instead force policies through the Reichstag against opposition from the weaker Estates.

Faced with French invasion after 1793, many of these backed the declaration of war, hoping that this would keep the military effort within the framework of collective security. Imperial mobilization was impressive. The lesser territories provided three-quarters of their official quotas, together with additional auxiliaries and militia more than making up the difference. The weakest elements often contributed disproportionately. The imperial knights paid 5.7 million florins in voluntary contributions between 1793 and 1801, while Prussia failed to pay its war taxes. Prussia provided 12,000 troops as its imperial contingent, plus another 10,000 in return for cash in lieu from weaker Estates and another 20,000 subsidized by Austria. Yet Prussia retained over 160,000 men at home, because it did not want to antagonize its own subjects by raising taxes.120

The Refusal to Sacrifice Liberties

Consequently, the principal burden fell to Austria, which had spent 500 million florins fighting France by 1798, pushing its debt to 542.5 million.121 Efforts to raise further resources proved counter-productive. The south-western Estates mobilized militia in 1793–4, but service was soon seen as another burden. Military setbacks and Prussia’s withdrawal spread disillusionment, as did the growing acceptance that France could not be defeated by conventional means.122 Two anecdotes illustrate the general reluctance to sacrifice what was being fought for just to achieve victory. The Reichshofrat upheld an appeal in 1794 from an official who had been dismissed by the Hanoverian government after he had lodged his own court case opposing the war against France as unconstitutional. Three years later, when challenged by Napoleon to defend the imperial church’s wealth in the light of Christ’s poverty, Friedrich Lothar Stadion argued simply that it was sanctioned by imperial law.123

Austria was unable to make peace in 1795, because it was bound by alliances with Britain and Russia. The Peace of Basel concentrated the war in south Germany and north Italy, but Austria fought on hoping to decide the Empire’s fate without consulting Prussia.124 Austrian forces held their own during 1796, but increasingly distrusted the remaining south German contingents. The Swabian Kreis troops were forcibly disarmed in July 1796, but Austria was unable to prevent Württemberg and Baden from concluding separate armistices the following month. As in 1740, Austria regarded refusal to cooperate as betrayal, and consequently felt even less compunction to adhere to constitutional norms. Imperial reform was now dictated by military circumstances. Renewed defeats in 1797 obliged Austria to agree preliminary peace terms at Campo Formio on 18 October, ceding the Rhineland to France and renouncing imperial jurisdiction over north Italy. Crucially, Campo Formio introduced the principle of compensation whereby secular rulers losing possessions through these changes were to be compensated east of the Rhine at the expense of the weaker imperial Estates, with Austria already secretly planning to annex Salzburg.

The public outcry deterred immediate implementation of the terms, while Austrian ministers still hoped to salvage key elements of the old order that they knew would limit Prussia’s potential gains. A congress convened in Rastatt at the end of 1797 to work out the details, but negotiations were delayed by Napoleon’s expedition to Egypt. The next 18 months made it abundantly clear that the fate of the lesser Estates was at stake and they rallied behind Austria when a renewed Russian alliance prompted Francis II to resume the war in 1799. Napoleon returned from Egypt and established himself as First Consul governing France in November. New French victories at Hohenlinden and Marengo in 1800 obliged Austria to sue for peace.

Reorganization of the Empire, 1801–4

Terms agreed at Lunéville in February 1801 broadly repeated those of Campo Formio, allowing France to annex 26,000 square kilometres and 1.8 million people west of the Rhine, as well as confirming that the Austrian Netherlands, Savoy and imperial Italy were no longer part of the Empire. The question of compensation was entrusted to an Imperial Deputation, but in practice was driven by power politics. Prussia already occupied Hanover with French permission in April 1801, setting a precedent for the middling princes who now dealt directly with France and Russia using the fig-leaf argument that these were guarantors of the Peace of Westphalia. France wanted to reorganize much of the Empire into larger territories that might be future allies, while Russia tried to preserve a more traditional balance whilst promoting the interests of dynasties like Württemberg and Hessen-Darmstadt who were related to the Romanovs. Along with Bavaria and Baden, these princes now began occupying neighbouring territories during 1801–2. The changes were belatedly endorsed with minor amendments by the Deputation in a document known as the Final Decision (Reichsdeputationshauptschluß), which was ratified by the Reichstag on 24 March 1803 and accepted by the emperor, the Reichskammergericht and imperial lawyers (Map 11).125

Compensation far exceeded the losses west of the Rhine. Prussia got the lion’s share, gaining 10,010 square kilometres with 431,000 inhabitants and nearly 2.5 million talers in annual revenue more than it lost to France. The other principal beneficiaries were Bavaria, Württemberg, Baden, Hessen-Kassel, Hessen-Darmstadt and Hanover, which was restored to Britain and given land, even though it lost nothing west of the Rhine. Austria annexed the bishoprics of Trent and Brixen, while Salzburg, Eichstätt and part of Passau went as a new electorate to Francis II’s younger brother, Ferdinand Joseph, who had been forced to cede Tuscany to France.126 In all, 112 imperial Estates were mediatized or lost to France, including virtually the entire church lands east of the Rhine, totalling 71,225 square kilometres with 2.36 million subjects and 12.72 million florins in annual revenue.

The historical verdict has been the repetitive refrain that the Empire ‘was now as good as dead’.127 This prognosis was still premature, because the majority of the Empire’s inhabitants did not experience 1801 as a total defeat, unlike 1918 or 1945. The territorial reorganization revealed both the strengths and weaknesses of the constitutional order, and it achieved the substance if not the spirit of many of the earlier reform plans through consolidating the Empire into a smaller number of individually larger principalities. Most regarded secularization as rationalization and not as a sin, as had been the case for many Catholics in 1555 and 1648.128 The Final Decision softened the blow by guaranteeing the free exercise of religion as Catholic lands passed to Protestant princes. While burghers mourned the loss of autonomy, some hoped that mediatization would rescue their home towns from the growing burden of debts.129

The assessment was surprisingly upbeat because the changes were thought to be limited to a redistribution of imperial fiefs rather than indicating a repudiation of corporate society. The mediatized authorities and populations only lost their constitutional autonomy, not their other rights. All the beneficiaries accepted binding responsibilities towards the victims, especially the imperial clergy, agreeing to pay annual pensions varying from up to 60,000 florins for former bishops to a tenth of that for former abbesses, while former canons were allowed a generous nine-tenths of their former incomes.130 Meanwhile, the new governments assumed all liabilities, which could be considerable: Bavaria acquired additional debts of 93 million florins. The lively reform debate continued, still concentrating on technicalities like adjusting the Reichstag and other institutions to align with the recent territorial redistribution.

However, the wider international situation ensured that the Empire no longer controlled its own destiny. All were acutely conscious of Poland’s recent fate when a new constitution intended to secure independence merely hastened external efforts to partition the country out of existence after 1793. Reformers rightly feared that vigorous measures to strengthen the Empire would prompt France to resume the war. Austria was unable to capitalize on renewed imperial patriotism for the same reason, as its forces were in no condition to fight. Deeper, more fundamental factors also inhibited reform. Territorial redistribution had not been a ‘clean sweep’ (Flurbereinigung), because formal power was still related to the status hierarchy. Reorganization of the electorates did nothing to reduce Austrian and Prussian influence and merely added to disputes over precedence. The princely college was restructured, giving the counts 53 full votes based on their acquisition of imperial cities and abbeys. The latter were often relatively rich, thus also briefly solving the counts’ debt problems. However, the electors were the primary beneficiaries since they simultaneously received the full votes of the former bishoprics, increasing their share of princely votes to 78 out of the new total of 131. Meanwhile, the consolidation of all Wittelsbach lands through inheritance meant that Bavaria had three times as much land as all counts combined. It was obvious that simply elevating someone like the count of Bretzenheim to princely status did not bring any real influence. Meanwhile, the annexation of four imperial cities by France and the mediatization of a further 41 by German counts and princes reduced the civic corpus to just six, rendering it little more than an adjunct to the Reichstag. The redistribution of votes made Austrian management of the Reichstag more difficult. Francis hesitated to confirm the new order, thereby undermining the assembly’s vitality.131 The Kreise were likewise affected, with Baden and Württemberg insisting on exercising the votes of the imperial cities they had annexed, alienating the remaining, weaker members, who were already concerned at being marginalized.

The real problem concerned the position of the middling princes. These had gained considerably in both real and formal influence, yet still had no prospect of using the imperial constitution to hold Austria and Prussia to account. They drew the lessons of events since 1796 and concentrated on developing their military potential to trade this, when necessary, for French recognition of their continued autonomy. The reality was not lost on the former counts, who resorted to the conventional practice of combining after August 1803 in two regionally based unions. Some still hoped to make the old order work through improved cooperation in the Reichstag and Kreis Assemblies, while Prince Karl of Isenburg-Birstein tried to militarize the Frankfurt Union as a possible partner for Napoleon. However, status consciousness was too deeply ingrained. The two unions failed to collaborate, and individual counts joined the middling princes in ‘mediatizing’ the imperial knights: in some cases, castles were besieged and the knights dragged away in chains.132 Austrian ministers recognized that the assault on the knights presaged the end of the emperor’s prerogatives and issued a legal injunction backed by the Reichstag in January 1804.133 Fear of France, which was now allied to several of the princes, prevented the injunction being enforced.

The Decisive Blow, 1805

Napoleon meanwhile forced the pace of events, proclaiming himself emperor (1804) and creating a new kingdom of Italy (1805). Austria sought refuge in renewed alliances with Britain and Russia. Unlike in the wars of 1793–7 and 1799–1801, there was no attempt to appeal to the Empire. Dalberg clung to the illusion that neutrality would preserve the Empire, but open support for France from Bavaria, Baden and Württemberg revealed how things were changing. Napoleon initiated hostilities, defeating the Austrians at Ulm in October 1805 and entering Vienna a month later, succeeding where the Ottomans had twice failed. A further Austro-Russian defeat at Austerlitz on 2 December broke all resistance. Austria agreed an armistice with France, the Russians retreated, and Prussia, which had mobilized, now backed down in return for renewed French permission to annex Hanover. Through this, Napoleon turned Prussia into ‘an accomplice’ in his destruction of the Empire.134

New treaties bound Baden, Bavaria and Württemberg closer to France, paving the way for Napoleon to dictate terms to Austria in the Peace of Pressburg on 26 December 1805. Austria accepted further territorial redistribution benefiting France’s German allies, and recognized Bavaria and Württemberg as sovereign kingdoms, and Baden as a sovereign grand duchy (Map 12).135 Pressburg was universally received as a hammer blow, crushing whatever optimism remained. Habsburg ministers recognized that the independence of Baden, Bavaria and Württemberg meant that little was left of the Empire. Sweden already declared in January 1806 that it would no longer participate in the Reichstag, which it regarded as dominated by usurpation and egoism.136 Napoleon created the new grand duchy of Cleves-Berg for his brother-in-law Murat, who acted as independent prince. The French emperor then forced Dalberg to accept another distant Bonaparte relation, Cardinal Fesch, as successor designate to the imperial arch-chancellorship in May 1806.137

Austria still struggled to preserve what remained of the Empire, disputing Napoleon’s interpretation of Pressburg to claim that the Swabian, Bavarian and Franconian Kreise still existed. The reluctance to face facts extended to Baden, Bavaria and Württemberg. Napoleon pressed the three sovereigns to renounce the Empire entirely. Württemberg did withdraw from the imperial postal network, but otherwise all hesitated to take the final step. Each felt uneasy about the circumstances in which they acquired their new status and wondered what value it had if the old hierarchical order was collapsing. Baden and Württemberg still paid their levy to maintain the Reichskammergericht, which continued to function into July 1806.138

The Final Act, 1806

Napoleon pressed on with plans to bind the militarily potent principalities to France and told his foreign minister at the end of May 1806 that he no longer recognized the Empire’s existence.139 The bitter atmosphere has coloured subsequent accounts of the final act, with virtually every German-speaking author into the late twentieth century criticizing Francis II for not doing more to save the Empire. Certainly, the emperor demeaned his position by trying to bargain territorial concessions from France in return for relinquishing the title.140 Francis himself blamed Prussia for not supporting him, while later commentators anachronistically bemoaned the lack of German nationalism.

Sixteen German princes hastened the end by agreeing the Confederation of the Rhine on French terms on 12 July 1806. In addition to Murat, the signatories comprised Dalberg, Bavaria, Württemberg, Baden, Hessen-Darmstadt, and 11 lesser princes, including Karl of Isenburg-Birstein, who used his carefully cultivated personal contacts with Napoleon to ensure he was included.141 Napoleon gave them until 25 July to ratify it, and on 22 July told Francis to abdicate by 10 August or face war. Only Bavaria, Württemberg, Hessen-Darmstadt and Isenburg publicly declared they were leaving the Empire. The Confederation Act included Napoleon’s permission to mediatize the remaining counties, which Württemberg immediately proceeded to do. The princes belatedly apologized to the Reichstag that adverse circumstances since 1795 had left them no choice, trying to excuse their actions by claiming the Empire had already ceased to exist. The next day, Habsburg officials feverishly prepared legal documents to enable Francis not merely to abdicate, but to remove the Empire entirely from Napoleon’s grasp by dissolving it.

Having been twice reminded by his ministers, Francis reluctantly signed the papers. On the morning of 6 August an imperial herald in full regalia rode through Vienna to the Jesuit church of the Nine Choirs of Angels. After climbing to the balcony, he summoned the inhabitants with a silver fanfare to announce the end of the Empire. The Reichstag was formally informed on 11 August, while letters were sent to foreign diplomats over the following week.142

The Empire was certainly not dead by the late eighteenth century, and if it was sick, as Zedler and others suggested, it was not yet on life support. If revolutionary France had not intervened, the most likely prognosis was that the Empire’s socio-political order would have persisted further into the nineteenth century, but it is unlikely that this could have been sustained against the levelling and homogenizing forces unleashed by capitalism and industrialization around 1830. Attempts to preserve the corporate order beyond 1806 will be addressed in this book’s final chapter, which also assesses the Empire’s longer-term significance for Germany and Europe.

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