Heart of Europe: A History of the Roman Empire (111 page)

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.
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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
).
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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 presiding
Kammerrichter
, 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.
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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.
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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.
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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.
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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.
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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

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.
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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.)
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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.