Heart of Europe: A History of the Roman Empire (112 page)

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