The Holy Roman Empire of the German Nation as an Order of Public Peace

The Holy Roman Empire of the German Nation as an Order of Public Peace Abstract This article proposes an alternative view of German imperial and constitutional historiography for the early modern period. It helps to answer the question of what held the Holy Roman Empire together. The Perpetual Public Peace formulated at the 1495 Diet of Worms remained valid until the demise of the Holy Roman Empire in 1806 and thus formed the central element of the imperial constitution. For this reason the Empire can be regarded as a system of Public Peace. This fundamental idea, formulated in the Public Peace of the reign of Maximilian I, was not entirely fixed at the outset and was thus capable of being extended. It was powerful enough to settle several security dilemmas and conflicts over the following three centuries. The basic idea of Public Peace was so strong that it could be re-established after each and every crisis. The agreements brokered at the 1495 Diet of Worms were the starting point for the development of a constitution and the starting point for the normative and institutional development of the system of Public Peace until 1806. Changes in the system were prompted periodically by domestic conflicts that challenged the system but never destroyed it. The article concludes with a case study that demonstrates that the idea of the Empire as a system of Public Peace was still relevant to the Emperor and the Empire in the eighteenth century. I: Introduction The Osnabrück politician, historian and commentator on the imperial constitution Justus Möser (1720–1794), who wrote numerous essays as publisher of the regional weekly newspaper the Wöchentliche Osnabrückische Anzeigen, also studied the history of the Holy Roman Empire and its constitution.1 Like many of his contemporaries, he was motivated by the question of what held the Empire together and how its political system could be described in a coherent and definitive manner. In his ‘Proposal for a New Plan of German Imperial History’ (Vorschlag zu einem neuen Plan der deutschen Reichsgeschichte), he developed the following idea: In my opinion, a history of our German Empire as it is today needs to start with this large and happy confederation, which is known as Maximilian’s Public Peace [Landfrieden], and in the process, the start and the progress, as well as the complete destruction of the old Empire, need to be transformed into a single treatise, into a single representation. From the latter, the historian would first show why this new confederation was necessary, then show its form, and then add everything else that had happened since then, either by way of improvement or diminution of the new system.2 Möser then explained his thinking by quickly outlining the most important events of 1495: the establishment of the Imperial Chamber Court, the management of peace and justice, the agreement to introduce the Common Penny, and the formalization of the Imperial Diet. Finally, surveying the historical development at the imperial level and in the territories, Möser postulated that the Empire had in fact thereby become a confederation. This led to an improvement in the inner condition of the Empire and furthermore each ruler within the Empire was now expected to create the corresponding institutions while under the protection of the Public Peace: ‘All initiatives now undertaken by the Empire will always serve the purpose of the confederation, [the Emperor and the estates] will join forces in order to resist attacks from outside and prevent every inner subversion.’3 The imperial electoral capitulations were also interpreted in accordance with this understanding, because they would have told the Emperor, as the supreme judge in relation to the Public Peace, what he was allowed or not allowed to do. In short, the entire history of Germany from the time of Maximilian’s Public Peace onward to the current hour is transformed into a single representation, into the story of the perfection of the formula that became the collectively accepted basic law of the new Empire.4 For Möser the Perpetual Public Peace (Immerwährende Landfrieden), or Maximilian’s Public Peace, was indeed a historic turning point, but it did not signify the end of the general Public Peace idea. Rather it marked the beginning of a new epoch whose mainstay was the Perpetual Public Peace as the Empire’s fundamental law. For Möser this ‘formula’ was the key to the imperial constitution. It allowed him to characterize the Empire’s history after 1495 more effectively than others who were writing at the time. In Möser’s opinion, the maintenance of the Public Peace was the joint task of the Emperor and the imperial estates collectively. While the rulers of the territories were required to apply the Public Peace laws, particularly the police legislation (Policeygesetzgebung), within the framework of their territorial laws, the Emperor and the imperial estates were jointly responsible for maintaining the peace in the Empire generally. That meant, first, defending the Empire against external attacks, and secondly, dealing with and resolving violent conflicts between the imperial estates, which always had the potential to endanger the existence of the entire Empire. Möser developed his ideas against the backdrop of two major European wars, the War of the Austrian Succession (1740–1748) and the Seven Years War (1756–1763). Based on his own experience, he was absolutely convinced that the existing imperial constitution was best suited to safeguarding the peace and, in particular, to ensuring the continued existence of the many smaller imperial estates.5 This explains his strong emphasis on the Empire as a constitutional system of Public Peace. Möser was never able to carry out his plan to write a new German imperial history. Nor did the historians who followed him take this idea any further. On the contrary, depending on changing political frameworks, the historiography of the Empire saw a variety of developments, trends and perspectives. Even the re-evaluation of the Holy Roman Empire of the German Nation that took place during the second half of the twentieth century did not result in a renaissance of the idea of the Empire as a system of Public Peace. Indeed, the whole subject of the Empire’s Public Peace was placed ad acta; it was simply ignored. By contrast this article will argue, just as Möser did, that the Perpetual Public Peace of 1495 formed the central element of the imperial constitution until the dissolution of the Empire in 1806 and that the Empire should thus be regarded as a system of Public Peace. Starting from this assumption, the article will show the importance of presenting a narrative of the history of the Empire and its constitution which, in contrast to others, takes the idea of Public Peace as the basis for the constitution as its starting point. For, despite all conflicts and wars, the basic idea of Public Peace remained so strong that it could be re-established after each and every crisis until 1806. Ultimately, the idea of the Holy Roman Empire as a system of Public Peace offers a clear answer to the question of what held the Empire together. At the same time, however, it also shows that there is a tradition of peace in German history—a perspective that is often neglected due to the catastrophes of the twentieth century. In view of the challenges currently faced by German politicians, the act of remembering this German tradition of peace could well serve as a point of orientation for a proactive commitment to peace in the world today. In order to demonstrate the validity of this thesis, the article will proceed in the following stages. First (part II), the genesis of the idea of the Empire as a system of Public Peace will be explained. The 1495 Diet of Worms and the results achieved there will be emphasized as the starting point of the development of the early modern German constitution. The next section (part III) will focus on the normative and institutional development of the German system of Public Peace in the early modern period under the impact of recurring security dilemmas. The following section (part IV) will examine the nature of these continual conflict situations. A case study (part V), of the crisis of the Empire at the start of the Seven Years War, will then illuminate the ways in which the idea of the Empire as a system of Public Peace was still a motivating force in the minds of both the Emperor and the imperial estates in the eighteenth century. II: The Holy Roman Empire as an Order of Public Peace The term Public Peace (Landfrieden) is to be understood as ‘an order of peace that is founded on the basis of a renunciation of violence, spatially organised and originally limited in terms of duration’. Horst Carl writes that, at a basic level, ‘peace was to be achieved and maintained by replacing the feud as a means of asserting eventual legal claims and rights or punishing wrongdoing through making legal regulations and the corresponding court or arbitration bodies legally binding’.6 Unlike other European monarchs, the German Emperors of the Holy Roman Empire were not able to impose a comprehensive ban on feuding and so assert a general peace during the Middle Ages. Yet they still claimed that they were responsible for maintaining the Public Peace.7 In light of this, the absence of actual peace during the late Middle Ages was increasingly regarded as ‘the failure of the kingdom in its central role’.8 The preservation of peace was decentralized over time by secular princes, who came together and pledged oaths to guarantee the maintenance of inner-territorial peace. According to Horst Carl, the protection of the Public Peace was thus realized through a plethora of organizations dedicated to securing collective security. Leagues and associations were thus formed, such as the Swabian Union of 1488, which not only protected the Public Peace on a regional level but also provided important impulses for the Imperial Public Peace of 1495.9 The struggle to secure internal peace resulted in political consolidation and forced a major constitutional change in the late middle ages and at the beginning of the early modern era. It was solely due to this development that institutions were created and mechanisms developed as the core of the Empire that were intended to protect and maintain peace; the maintenance of that peace henceforth became the Empire’s raison d’être. Since the complementary structure of the Empire in the early modern period was itself a product of the rivalry between the Emperor and the imperial estates, the question of who was responsible for the Public Peace was thus of utmost importance. In effect, this became a struggle for hegemony within the Empire. The conflict between Emperor Maximilian I and the imperial estates over the imperial constitution resulted in the ‘perpetual [i.e. unlimited] peace’ (Ewiger Landfriede), which was agreed at the Diet of Worms in 1495. At the same time the Imperial Chamber Court (Reichskammergericht) was created for the implementation and safeguarding of the peace. The Perpetual Public Peace also required a force for its execution and this was dealt with in the regulations for the ‘handling of peace and law’ (Handhabung Friedens und Rechts). The Imperial Diet (Reichstag), constituted as a forum of communication between Emperor and Empire, held ultimate responsibility, which also underlined its autonomy. An imperial tax, the so-called Common Penny (Gemeiner Pfennig), was intended not just to secure the financing of the Imperial Chamber Court, but also to ensure that the financial means were available for military action to be taken against those who breached the peace.10 This was a system that was designed to create a general and perpetual peace through an unconditionally recognized ban on feuding and violence.11 The Perpetual Public Peace was essentially contractual in nature, for in principle it obligated only those imperial estates that had actually explicitly agreed to the regulations to comply with them.12 In 1495, however, all assented to the proposals, which came to be regarded as fundamental laws of the Empire. According to the terms of the Perpetual Public Peace, all disputes were to be settled peacefully in a court of law. Anyone who nonetheless engaged in feuding and violent actions would fall under the imperial ban, that is to say, they would be outlawed.13 Irrespective of their status or titles they would be subject to harsh punishment. Thus German scholars speak of the criminalization of the feud. As the guardian of the Public Peace, the Emperor made all imperial estates and subjects promise to comply with the articles of the peace, with reference to the oaths given and under the threat of royal disfavour and the most severe punishment specified by the law of the Empire. A great variety of bans related to the treatment of those found guilty of proven breaches of the peace. These were meant to ensure enforcement and compliance. In addition to those who actually breached the peace, those who provided support to them were also threatened with banning and ostracism. III: Normative and Institutional Expansion of the Order of Public Peace The basic text of the Perpetual Public Peace remained unchanged, but it was repeatedly confirmed, reiterated and continuously extended by subsequent imperial recesses and imperial laws. Numerous additions were made that reflected the changing security dilemmas of the early modern period. The first extensions of the peace statute were undertaken very soon, at the Imperial Diet held at Freiburg im Breisgau in 1498.14 A number of further additions to the Perpetual Public Peace followed at subsequent Imperial Diets, which, together with other additions made by Emperor Charles V, were then confirmed and systematically ordered both in his electoral capitulation and in the recess of the Diet of Worms in 1521.15 Special preventive laws were also passed that extended the protection of the Public Peace and aimed to prevent conflicts from arising that might very well have ended in breaches of the Public Peace.16 These included the specification of legal procedures that could be implemented before disputes escalated to the point of open conflict and violence. Such a preventive legal procedure was, in fact, developed at the Imperial Chamber Court itself. The court could issue orders designed to preserve or to re-establish the Public Peace either officially or within the framework of legal procedures in the event of a potential breach of the Public Peace or when acts of violence had already occurred. This was designed to diminish the risk of a threatening escalation of a dangerous situation. At the same time, the court was also entitled to summon an aggressor under the threat of a fine. Starting from these first penalty mandates, the Imperial Chamber Court developed a complex mandate procedure (Mandatsprozess) during the sixteenth century.17 This was an extraordinary form of summary procedure that is comparable with the preliminary injunctions used in the legal process today. This type of procedure became ‘the specific procedural instrument for ensuring the Public Peace’, and it effectively supplemented the original mechanisms of the Perpetual Public Peace.18 The legal procedure could lead either to someone who breached the peace being brought before a court or to the imposition of an imperial ban. From the middle of the seventeenth century such cases generally involved the issue of an enforcement mandate. In contrast to the Imperial Chamber Court, the Imperial Aulic Council (Reichshofrat) was not created as a protective institution for the system of Public Peace, but developed as part of the administrative reforms that were undertaken in 1497–98 when the Imperial Privy Council was restructured.19 Recent research has found evidence of political calculation in its creation: the aim was to confront the corporative Imperial Chamber Court of 1495—the princes’ court—with a supreme court that was controlled by the Emperor and that would enable him to regain the political initiative within the framework of the imperial reforms.20 Besides its function as a court, the Imperial Aulic Council was also the highest feudal court and advisory body to the Emperor. The Imperial Chamber Court and the Imperial Aulic Council had almost exactly the same competencies: initial jurisdiction in the event of a breach of the Public Peace and sanctioning legal action that was to be taken by or against imperial estates. The Imperial Aulic Council had exclusive jurisdiction over all matters that affected the Emperor’s prerogative rights, the so-called Reservatrechte, in other words the Emperor’s right to grant privileges, ennoble individuals or promote existing nobles, and issue declarations of attainment of majority or letters of protection, as well as his authority to decide feudal issues. The function of the Imperial Chamber Court and the Imperial Aulic Council as the highest appeal courts in the Empire was of the greatest importance. Their competence could only be limited by an exemption granted by the Emperor (privilegium de non appellando). In order to receive this, the imperial estates needed to establish multi-tiered court systems in their territories, for which the highest imperial courts served as the model. The scrutiny of the decisions of the territorial courts (Appellationsprozesse) in the course of appeals also exerted strong pressure on the imperial estates to participate in the execution of the Empire’s system of Public Peace in their own territories. A central difference between the two supreme courts in the Holy Roman Empire lay in the procedure practised in the initial instance of a due process.21 While the procedures at the Imperial Chamber Court became ever more regulated through a differentiated and detailed order of procedure (Kameralprozess), the Imperial Aulic Council did not follow a stilus curiae. That also applied to the ban process.22 In this way, the Imperial Aulic Council showed itself to be significantly more flexible and offered a variety of different modes of action. Through doing so, it enabled the Emperor to offset the competencies that he had lost in other areas with regard to preserving and ensuring the peace. As Matthias Weber notes, ‘the Emperor and the Imperial Aulic Council still retained the ban, while the Imperial Chamber Court ceased to employ this means of legal redress’.23 This made it possible to uphold the Emperor’s claim to be the guardian of the Public Peace, while at the same time representing imperial power. IV: The Security Dilemma The Reformation and the emergence of two confessions within the Empire severely tested the concept of Public Peace, leading ultimately to its expansion to include religion. Lawsuits concerning religious matters (so-called ‘Reformation lawsuits’) were introduced at the Imperial Chamber Court as matters concerning the Public Peace from the start, although relatively few cases were instigated during the early period of the Reformation.24 In the end, however, the conflicts between Protestants and Catholics were fought not as questions of religious truth but rather within the system of Public Peace that had been established in 1495.25 The Schmalkaldic War of 1546/47 was officially not a religious war since it technically involved the enforcement of the imperial ban against Hesse and Electoral Saxony, who had breached the Public Peace when they invaded Brunswick.26 This automatically paved the way for the Emperor and the Empire to maintain the Public Peace by falling back on the instruments that had been consensually created in 1495, which duly brought about a legal and political solution to the religious conflict. The Augsburg Religious Peace (Augsburger Religionsfrieden) was declared to be ‘part of the Worms Imperial Public Peace renewed by the Augsburg Imperial Diet’ and was thereby subject to the legal guarantees for the collective protection of the peace.27 The 1555 definition of a breach of the Public Peace included two additions, which reflected the fundamental changes that had occurred in the power relations within the Empire since 1548.28 No imperial estate of the Augsburg Confession (i.e. Protestant) was to be overrun by violence or hindered in its beliefs or in the maintenance of ceremonies and ecclesiastical orders because of the measures a ruler decided upon concerning religion. In cases of religious conflicts, peaceful ways and means of finding solutions were to be looked for. In return, Lutherans were compelled to leave those who retained the Catholic faith alone and not to undertake any actions against them.29 The Reichsexekutionsordnung, or ordinance concerning the implementation of imperial law, that was contained in the recess of 1555 was also included among the fundamental laws of the Empire. Because the individual imperial estates had refused to execute and implement the judgements of the Imperial Chamber Court and did not meet its obligation of compliance, the Imperial Circles (Reichskreise) were commissioned to deal with breaches of the Public Peace and to implement the rulings of the highest court.30 This in effect meant a weakening of the Emperor’s position as the guardian of the Public Peace. In turn, the importance of the Imperial Chamber Court was enhanced by means of this extensive and detailed statute. One of the expansions entailed the incorporation of the so-called procurator fiscal (Reichsfiskal) into the system of Public Peace; his duties and competencies were explained in detail and set down within the framework of the law concerning the procedure of the Imperial Chamber Court of 1555 (Reichskammergerichtsordnung).31 As a public prosecutor he intervened in cases where the Emperor’s interests and the Public Peace of the Empire had been violated. This included—in addition to monitoring the Public Peace—cases where a ruler had breached his allegiance to the Emperor, for example by entering into the military service of a foreign sovereign. At the end of the sixteenth century, the Imperial Aulic Council established its own procurator fiscal, probably in order to ‘transfer the fiscal matters from the weakened Imperial Chamber Court to the Imperial Aulic Council’.32 At least up until the end of the sixteenth century, the extended system of Public Peace had functioned in various areas that went far beyond confession-related conflicts.33 Then, as the confessional fronts hardened again from the end of the sixteenth century on owing to religious processes and the imposition of the imperial ban on Donauwörth, the Order of Public Peace was once again effectively nullified, which ultimately resulted in the outbreak of the Thirty Years War in 1618.34 The solution adopted in 1495, that acts of violence between two imperial estates would be allowed only as punishment for breaches of the Public Peace, and the definition of all inner threats to the Empire as potential breaches of the Public Peace ultimately set the procedural precedent for dealing with future security dilemmas within the Empire successfully. Even during the Thirty Years War, military actions undertaken by the Catholic League were justified as executions of the Public Peace intended to re-establish the Peace of Augsburg.35 It was logical, therefore, that the 1648 Osnabrück Peace Treaty was regarded as a renewal of the Augsburg settlement and as a legal update of the Public Peace, which now included the Calvinists and even more precise regulations than in 1555.36 Against the backdrop of the experiences of the Thirty Years War, after 1648 the question of how the imperial ban should be imposed on those who breached the Public Peace became a major concern within the constitutional conflict between the Emperor and the imperial estates. Until the Thirty Years War, the Emperor and the Imperial Chamber Court were both entitled to impose an imperial ban and each made use of this entitlement in well-known and richly documented cases, without ever questioning the right of the other to do so.37 At the beginning of the seventeenth century, and particularly during the Thirty Years War, the Bohemian revolt prompted a new formulation of the imperial interpretation of the law, which seriously challenged the 1495 Public Peace. The core question concerned the involvement of the imperial estates or the Imperial Diet in the imposition of the imperial ban. The Imperial Aulic Council agreed with the Emperor’s new view, that an obvious breach of the Public Peace and ‘notorious rebellion’ did not require him to summon and hear the accused and that the guilty parties had in effect passed judgement upon themselves through their actions.38 In advancing this view, the Imperial Aulic Council referred to the Public Peace Order that had been issued by the Imperial Diet in 1559. This is why the Imperial Aulic Council attached such significance to cases like this: it was not acting as a court of law but rather as an advisory body to the Emperor. This legal opinion of the Imperial Aulic Council was then employed in various imperial ban declarations during the Thirty Years War, for example against Ernst von Mansfeld, Elector Frederick V of the Palatinate and other princes.39 The Protestant side regarded this as a radical infringement of the constitution. The question of how the imperial ban should be imposed on those who breached the peace had a fundamental constitutional significance, which is probably why it was put on the back burner at the Westphalian peace deliberations.40 It was only in the context of the discussions of the Perpetual Electoral Capitulation and the electoral capitulation of Emperor Charles VI in 1711 that this issue was resolved.41 Finally Emperor and Empire returned to the original system and once more agreed that the voice of the imperial estates had to be heard when it came to imposing imperial bans, although one can see a clear shift in competencies between the Imperial Diet and the supreme courts.42 On the whole, the tendency on the part of the law-makers in relation to the Public Peace and the imposition of imperial bans was towards greater regulation. The result was that neither the Imperial Chamber Court nor the Imperial Aulic Council dealt with many such cases during the eighteenth century.43 But that does not mean that the question of how to deal with breaches of the Public Peace and the imperial ban was simply put aside ad acta. It is far more the case that one can assume a broad acceptance and internalization of the terms of the whole system of Public Peace. Bearing this in mind, any imperial estate’s act of violence against another must have been rather alarming. Such actions would have been perceived not only as a danger to the Public Peace, but even—in the eyes of contemporaries—as an attack on the Empire’s very existence. V: Case Study: The Crisis of 1756 The rise of Brandenburg-Prussia and the evolving Prussian-Austrian dualism led to a serious stress test of the Empire. In 1756, at the start of the conflict, the Emperor declared the incursion of Brandenburg-Prussia into Electoral Saxony to be a breach of the Public Peace. He issued a decree against the illegal incursion and efforts were even made in Vienna to instigate a process to impose an imperial ban on Prussia.44 Emperor Francis I had at his disposal all the legal instruments that he needed to use against Frederick II of Prussia. After Electoral Saxony protested, the Emperor officially informed the Imperial Aulic Council on 9 September 1756 about Prussia’s aggressive act and asked for an expert opinion on the question of how he should proceed in accordance with his imperial duties.45 The Imperial Aulic Council responded on 13 September with a report, as well as a further Conclusum, in which the military actions undertaken by Frederick II were deemed illegal. Specifically, they were however and obviously, not only in contradiction to the Public Peace and the imperial constitution, but were also done in such a way … that the authority of the Emperor and the sovereignty of the Empire were insulted and its constitution, each and every imperial estate and therefore its very structure and order, were violated in similar fashion, and as a result, were threatened with joint and shared demise. Therefore the act itself was a hostile attack and occupation of the Empire and the complete outrage perpetrated by the Electoral Prince of Brandenburg is to be seen as an attack against his imperial majesty and the Empire.46 The reference to the complete collapse of the Empire and its constitution became a crucial argument on all sides from this point onwards. According to the Conclusum the Emperor was obliged to protect the Imperial Public Peace. Using the authority of his highest judicial office, the Emperor ordered the King in Prussia as the Elector of Brandenburg to withdraw his troops, to give back all the lands he had taken and to pay reparations.47 Furthermore, following another proposal from the Imperial Aulic Council, so-called Avocatoria were issued to the Prussian troops and to all Prussian subjects, which called on them to refuse the orders of the Prussian military commanders and to abandon the flag. In the same vein, all imperial knights were banned from performing military service for the Prussian crown under the threat of sanction. The princes who held the highest office in the imperial circles were instructed to make troops available for the conflict against Prussia in accordance with the enforcement order.48 The Imperial Aulic Council intended to use all the measures provided by imperial legislation to protect the Empire from further danger and it clearly believed that time was of the essence. The Prussian incursion into Electoral Saxony provoked outrage and was described as a grievous crime, yet there was initially some delay in taking steps to penalize and punish the King in Prussia as the Elector of Brandenburg. First, it was decided to see ‘how the Empire itself would react’.49 The Imperial Aulic Council believed that the entire incident was unprecedented and that it had taken on such a form that it affected the whole Empire. The Empire’s support was absolutely necessary for security and lasting calm and order to be re-established. This is why the council believed that the Emperor should issue a decree (Kommissions-Dekret) outlining his approach and that he should persuade the Imperial Diet to take action against Frederick’s breach of the Public Peace. Following the incursion of Brandenburg-Prussia into Bohemia, the Imperial Aulic Council reacted with extreme agitation in a further Conclusum, of 9 October 1756. The Empire was in flames!50 The following measures, which were to be advertised to the Imperial Diet in a second imperial decree, were recommended: investigations by the procurator fiscal against Frederick II, which were strictly in accordance with the imperial legal framework of the intended imperial ban proceedings; activation of the imperial circles in order to provide military assistance against Prussia; and action against insubordinate imperial estates.51 In contrast to the Emperor’s first decree, this one went much further: now ‘the writings that disturb the public peace and which are directed against the Empire’s sovereignty and its statutes’ were also targeted: ‘their authors, printers, distributors, supporters should be subject to sanction’.52 By means of these decrees, the Imperial Aulic Council responded to the massive Prussian propaganda that had already been disseminated prior to the start of the war, predominantly by the Prussian envoy at the Imperial Diet, Erich Christoph von Plotho, and that had been designed to persuade the Protestant imperial estates to take Prussia’s side.53 In this context, the Imperial Diet developed into a ‘secondary battlefield’, on which both Brandenburg-Prussia and the Emperor tried to gain the support of the imperial estates for their respective legal positions. Both sides claimed to be acting in the best interests of the Empire and its constitution, and each warned about the activities of the other, representing these as damaging the Empire. As a result, there was a growing debate over whether Frederick II had indeed breached the Public Peace and whether the Emperor and the Imperial Aulic Council had acted legally within the framework of the imperial constitution. All parties were aware that the real issue at stake here was the future of the Empire as a system of Public Peace. The imperial argument eventually prevailed and with the votes of the Catholic majority and a number of Protestant imperial estates explicitly referring to the decisions of the Imperial Aulic Council, the Imperial Diet decided on 17 January 1757 to impose an imperial ban on Brandenburg-Prussia.54 This happened despite all the Prussian propaganda and the criticism of the allegedly precipitate actions of the Emperor and the Imperial Aulic Council. The violations by Brandenburg-Prussia of the imperial constitution and its anti-imperial actions were too obvious. The legal case advanced by the Prussians was too flimsy. Against the background of this experience, specifically the imperial ban procedure instigated in 1757, the public legal debate about the Public Peace reached its climax. Leading commentators on the Empire and its constitution such as Johann Jakob Moser revived the idea of the Perpetual Public Peace as the highest law and ‘reason for common security’ within the Empire.55 Moser believed that the Empire was now in great danger. He feared the destruction of the entire imperial constitution. From his point of view, that meant the threat of the complete collapse of all order, following which Germany would become the playground for the whole of Europe.56 In his opinion, anyone who turned against the highest imperial courts or did not follow their judgements was ‘without doubt an enemy of the calm and security of our fatherland, indeed the entire fundamental constitution of the German Empire’.57 At the same time, however, Moser called upon the imperial tribunals and the Imperial Courts to administer justice in an unbiased manner. Anyone who did not do this should be recognized, in his opinion, as an enemy of the constitution. VI: Conclusion First, the Public Peace created by an ingenious act in 1495 was the true foundation of the imperial constitution, although it could not prevent all wars on German soil. In general, however, it dramatically limited the number of conflicts within the Empire for more than 300 years. Secondly, the idea of a general and perpetual public peace was strong enough to be re-established after every crisis. Thirdly, even during the Thirty Years War, the Public Peace served as a common denominator for the various German antagonists until the Peace Treaty of Prague in 1635 and once again, for all sides, during the complex Westphalian peace negotiations from 1643 to 1648, when the parties finally managed to distinguish between the separate fields of dispute. Obviously, it was not a sufficiently powerful concept to hinder foreign crowns from invading the Holy Roman Empire. Yet the Public Peace did not fail in 1546/47, in 1648, or in the middle of the eighteenth century. On the contrary, Brandenburg-Prussia’s breach of the Public Peace obliged the Emperor and the Empire to revert to the Public Peace as a fundamental law of the imperial constitution. The reflections of legal commentators played an important role in this process. The imperial report of 17 January 1757, which confirmed the measures of the Imperial Aulic Council and approved the imperial execution against Brandenburg-Prussia, demonstrated that the Empire continued to act on the basis of the Perpetual Public Peace. The idea of a perpetual public peace not only constituted the very foundation of the constitution of the Holy Roman Empire for over three centuries, but also experienced a significant renaissance in the middle of the eighteenth century. Footnotes This article is based on a lecture given to the Cambridge New Habsburg Studies Network on 23 May 2017 and on Siegrid Westphal, ‘Reichskammergericht, Reichshofrat und Landfrieden als Schutzinstitute der Reichsverfassung’, in Thomas Simon and Johannes Kalwoda (eds), Schutz der Verfassung: Normen, Institutionen, Höchst- und Verfassungsgerichte (Berlin, 2014), pp. 13–37. 1 Thorsten Heese and Martin Siemsen (eds), Justus Möser 1720–1794: Aufklärer, Staatsmann, Literat. Die Sammlung Justus Möser im Kulturgeschichtlichen Museum Osnabrück (Bramsche, 2013). 2 Akademie der Wissenschaften zu Göttingen (ed.), Justus Mösers sämtliche Werke: historisch-kritische Ausgabe, 14 vols in 16 (Berlin, Oldenburg/Hamburg, Osnabrück, 1943–90), vol. 7 (1954), pp. 130–3, at p. 131. 3 Ibid., vol. 7, p. 132. 4 Ibid. 5 Anton Schindling, ‘Justus Möser—Fiktion und Realität des Alten Reiches’, in Winfried Woesler (ed.), Möser-Forum 3 / 1995–2001 (Osnabrück, 2002), pp. 205–19, at p. 213. 6 Horst Carl, ‘Landfriede’, in Enzyklopädie der Neuzeit 7 (2008), cols 493–500, at col. 493. For an overview see Arno Buschmann, ‘Ewiger Landfriede’, in Handwörterbuch zur deutschen Rechtsgeschichte I (2nd edn, Berlin, 2008), cols 1447–50. 7 Matthias G. Fischer, Reichsreform und ‘Ewiger Landfrieden’: über die Entwicklung des Fehderechts im 15. Jahrhundert bis zum absoluten Fehdeverbot von 1495 (Aalen, 2007); Heinz Angermeier, Königtum und Landfriede im deutschen Spätmittelalter (Munich, 1966). 8 Horst Carl, ‘Landfrieden als Konzept und Realität kollektiver Sicherheit im Heiligen Römischen Reich’, in Gisela Naegle (ed.), Frieden schaffen und sich verteidigen im Spätmittelalter / Faire la paix et se défendre à la fin du Moyen Age (Göttingen, 2011), pp. 121–38, at p. 122. 9 Horst Carl, Der schwäbische Bund 1488–1534: Landfrieden und Genossenschaft im Übergang vom Spätmittelalter zur Reformation (Leinfelden, 2000); Guido Komatsu, Landfriedensbünde im 16. Jahrhundert (Göttingen, 2001). 10 Westphal, ‘Reichskammergericht’. 11 Jürgen Weitzel, ‘Die Rolle des Reichskammergerichts bei der Ausformung der Rechtsordnung zur allgemeinen Friedensordnung’, in Ingrid Scheurmann (ed.), Frieden durch Recht: das Reichskammergericht von 1495 bis 1806 (Mainz, 1994), pp. 40–8; Sabine Jaberg, Systeme kollektiver Sicherheit in und für Europa in Theorie, Praxis und Entwurf: ein systemwissenschaftlicher Versuch (Baden-Baden, 1998). 12 Fischer, Reichsreform, p. 223. 13 Matthias Weber, ‘Zur Bedeutung der Reichsacht in der Frühen Neuzeit’, in Johannes Kunisch (ed.), Neue Studien zur frühneuzeitlichen Reichsgeschichte (Berlin, 1997), pp. 55–90. 14 Buschmann, ‘Ewiger Landfriede’, cols 1448–9. 15 Tobias Branz, ‘Von Religionsfriedenstatbeständen, Landfriedensbruch und Reformationsprozessen am Reichskammergericht’, in Anja Amend-Traut, Anette Baumann, Stephan Wendehorst and Steffen Wunderlich (eds), Die höchsten Reichsgerichte als mediales Ereignis (Munich, 2012), pp. 151–77, at p. 151. 16 Ibid., p. 152. 17 Adolf Laufs, Die Reichskammergerichtsordnung von 1555 (Cologne and Vienna, 1976); Manfred Hinz, ‘Der Mandatsprozeß des Reichskammergerichts’ (Dissertation [jurisprudence], Freie Universität Berlin, 1966); Bettina Dick, Die Entwicklung des Kameralprozesses nach den Ordnungen von 1495–1555 (Cologne and Vienna, 1981); Manfred Uhlhorn, Der Mandatsprozeß sine clausula des Reichshofrats (Cologne, Weimar and Vienna, 1990); Bernd Schildt, Die Entwicklung der Zuständigkeit des Reichskammergerichts (Wetzlar, 2006). 18 Weitzel, ‘Die Rolle des Reichskammergerichts’, p. 45. 19 Oswald von Gschließer, Der Reichshofrat: Bedeutung und Verfassung, Schicksal und Besetzung einer obersten Reichsbehörde von 1559 bis 1806 (Vienna, 1942); Wolfgang Sellert, Prozeßgrundsätze und Stilus Curiae am Reichshofrat im Vergleich mit den gesetzlichen Grundlagen des reichskammergerichtlichen Verfahrens (Aalen, 1973); Wolfgang Sellert (ed.), Die Ordnungen des Reichshofrates, 2 vols (Cologne and Weimar, 1980–90); Volker Press, ‘Der Reichshofrat im System des frühneuzeitlichen Reiches’, in Friedrich Battenberg and Filippo Ranieri (eds), Geschichte der Zentraljustiz in Mitteleuropa: Festschrift für Bernhard Diestelkamp zum 65. Geburtstag (Weimar, Cologne and Vienna, 1994), pp. 349–64; Wolfgang Sellert, ‘Der Reichshofrat’, in Bernhard Diestelkamp (ed.), Oberste Gerichtsbarkeit und zentrale Gewalt im Europa der frühen Neuzeit (Cologne, Weimar and Vienna, 1996), pp. 15–44. 20 Eva Ortlieb, ‘Vom königlichen/kaiserlichen Hofrat zum Reichshofrat. Maximilian I., Karl V., Ferdinand I.’, in Bernhard Diestelkamp (ed.), Das Reichskammergericht: der Weg zu seiner Gründung und die ersten Jahrzehnte seines Wirkens (1451–1527) (Cologne, Weimar and Vienna, 2003), pp. 221–89; Eva Ortlieb, ‘Die Entstehung des Reichshofrats in der Regierungszeit der Kaiser Karl V. und Ferdinand I. (1519–1564)’, Frühneuzeit-Info, 17 (2006), pp. 11–26. 21 Eva Ortlieb, ‘Das Prozeßverfahren in der Formierungsphase des Reichshofrats (1519–1564)’, in Peter Oestmann (ed.), Zwischen Formstrenge und Billigkeit: Forschungen zum vormodernen Zivilprozeß (Cologne, Weimar and Vienna, 2009), pp. 117–38, at p. 117. 22 Weber, ‘Zur Bedeutung der Reichsacht’, p. 81. 23 Ibid. 24 For an overview of the literature, see Branz, ‘Von Religionsfriedenstatbeständen’. 25 Anton Schindling, ‘Gab es Religionskriege in Europa? Landfrieden und Völkerrecht statt Glaubenskampf und “Strafgericht Gottes”‘, in Axel Gotthard, Andreas Jakob and Thomas Nicklas (eds), Studien zur politischen Kultur Alteuropas: Festschrift für Helmut Neuhaus zum 65. Geburtstag (Berlin, 2009), pp. 275–98, at p. 275. 26 Siegrid Westphal, ‘Die Entwicklung des Schmalkaldischen Bundes im Spiegel seiner Bundesabschiede’, in Verein für Schmalkaldische Geschichte (ed.), Der Schmalkaldische Bund und die Stadt Schmalkalden (Schmalkalden, 1996), pp. 19–63. 27 Schindling, ‘Gab es Religionskriege in Europa?’, p. 292. 28 Branz, ‘Von Religionsfriedenstatbeständen’, p. 162. 29 Quoted in ibid., p. 177. See also Axel Gotthard, Der Augsburger Religionsfrieden (Münster, 2004); Heinz Schilling and Heribert Smolinsky (eds), Der Augsburger Religionsfrieden 1555 (Heidelberg, 2007). 30 Udo Gittel, Die Aktivitäten des Niedersächsischen Reichskreises in den Sektoren ‘Friedenssicherung’ und ‘Policey’ (1555–1682) (Hanover, 1996). 31 Björn Alexander Rautenberg, Der Fiskal am Reichskammergericht: Überblick und exemplarische Untersuchungen vorwiegend zum 16. Jahrhundert (Frankfurt/Main, 2008); Gernot Peter Obersteiner, ‘Das Reichshoffiskalat 1596 bis 1806: Bausteine zu seiner Geschichte aus Wiener Archiven’, in Anette Baumann, Peter Oestmann, Stephan Wendehorst and Siegrid Westphal (eds), Reichspersonal: Funktionsträger für Kaiser und Reich (Cologne, Weimar and Vienna, 2003), pp. 89–164, at p. 98; Laufs, Die Reichskammergerichtsordnung, p. 99. 32 Obersteiner, ‘Das Reichshoffiskalat’, p. 89. 33 Carl, ‘Landfriede’, col. 495. 34 Bernhard Ruthmann, Die Religionsprozesse am Reichskammergericht (1555–1648): eine Analyse anhand ausgewählter Prozesse (Cologne, Weimar and Vienna, 1996). 35 Weber, ‘Zur Bedeutung der Reichsacht’, p. 67. 36 Carl, ‘Landfriede’, col. 497. 37 Weitzel, ‘Die Rolle des Reichskammergerichts’, p. 46. 38 Christoph Kampmann, ‘Der Leib des Römischen Reichs ist der Stände Eigentum und nicht des Kaisers: zur Entstehung der Konkurrenz zwischen Kaiserhof und Reichstag beim Achtverfahren’, in Wolfgang Sellert (ed.), Reichshofrat und Reichskammergericht: ein Konkurrenzverhältnis (Cologne, Weimar and Vienna, 1999), pp. 169–98, at p. 169. 39 Christoph Kampmann, Reichsrebellion und kaiserliche Acht: politische Strafjustiz im Dreißigjährigen Krieg und das Verfahren gegen Wallenstein 1634 (Münster, 1992). 40 Anton Schindling, Die Anfänge des Immerwährenden Reichstags zu Regensburg (Mainz, 1991), p. 123. 41 Kampmann, ‘Der Leib des Römischen Reichs’, p. 171. 42 Wolfgang Burgdorf, Protokonstitutionalismus: die Reichsverfassung in den Wahlkapitulationen der römisch-deutschen Könige und Kaiser 1519–1792 (Göttingen, 2015), p. 87. 43 Weber, ‘Zur Bedeutung der Reichsacht’, pp. 80–1; Dietrich Landes, Achtverfahren vor dem Reichshofrat (dissertation [jurisprudence], Johann Wolfgang Goethe-Universität Frankfurt/Main, 1964). 44 Artur Brabant, Das Heilige Römische Reich teutscher Nation im Kampf mit Friedrich dem Großen, 3 vols (Berlin and Dresden, 1904–31); Karl Otmar von Aretin, Das Alte Reich 1648–1806, vol. 3: Das Reich und der österreichisch-preußische Dualismus (1745–1806) (Stuttgart, 1997); Peter Rauscher, ‘Recht und Politik: Reichsjustiz und oberstrichterliches Amt des Kaisers im Spannungsfeld des preußisch-österreichischen Dualismus (1740–1785)’, Mitteilungen des Österreichischen Staatsarchivs, 46, (1998), pp. 269–309; Sven Externbrink, Friedrich der Große, Maria Theresia und das Alte Reich: Deutschlandbild und Diplomatie Frankreichs im Siebenjährigen Krieg (Berlin, 2006); Sven Externbrink, ‘Frankreich und die Reichsexekution gegen Friedrich II.: zur Wahrnehmung der Reichsverfassung durch die französische Diplomatie während des Siebenjährigen Krieges’, in Olaf Asbach, Klaus Malettke and Sven Externbrink (eds), Altes Reich, Frankreich und Europa: politische, philosophische und historische Aspekte des französischen Deutschlandbildes im 17. und 18. Jahrhundert (Berlin, 2001), pp. 221–53; Sven Externbrink, ‘Kommunikation—Information—Außenpolitik: Frankreich und Brandenburg-Preußen zur Zeit des Siebenjährigen Krieges (1756–1763)’, in Ralf Pröve and Norbert Winnige (eds), Wissen ist Macht: Herrschaft und Kommunikation in Brandenburg-Preußen (1600–1850) (Berlin, 2001), pp. 157–76; Michael Rohrschneider, ‘Schwierige Beziehungen! Friedrich der Große und der Immerwährende Reichstag (1745–1763)’, in Friedrich300—Studien und Vorträge, www.perspectivia.net/publikationen/friedrich300-studien/rohrschneider_beziehungen (25 Aug. 2013). 45 Rauscher, ‘Recht und Politik’, pp. 290–95; Aretin, Altes Reich, vol. 3, pp. 87–107; Brabant, Das Heilige Römische Reich, vol. 1, pp. 39–82. 46 Haus-, Hof- und Staatsarchiv, Wien (HHStA), Deductionen, Preußischer Krieg 1756, 278a, Votum and Conclusum of the Imperial Aulic Council to the Emperor, 13 Sept. 1756. The original reads ‘nicht allein dem Land-Frieden und der Reichs-Verfassung allerdings und offenbar zuwider, sondern auch allerseits so beschaffen … daß diese die Kayserliche Authorität und die Hoheit des Reichs beleidigeten und dessen Verfassung den gänzlichen Umsturz, allen und jeden Ständen aber ihrer Ordnung nach eine gleichgeartete Vergewaltigung und darmit den gemeinsamen Untergang androheten, somit in sich eine feindliche An- und Uberziehung des Reichs und sein des Churfürsten zu Brandenburg gänzliche Empörung wider Kayserliche Majestät und das Reich seye.’ 47 Rauscher, ‘Recht und Politik’, p. 291. 48 Ibid. 49 HHStA Wien, Deductionen, Preußischer Krieg 1756, 278a, Votum and Conclusum of the Imperial Aulic Council to the Emperor, 13 Sept. 1756 50 HHStA Wien, Deductionen, Preußischer Krieg 1756, 278a, Votum and Conclusum of the Imperial Aulic Council to the Emperor, 9 Oct. 1756. 51 Rauscher, ‘Recht und Politik’, p. 292. 52 HHStA Wien, Deductionen, Preußischer Krieg 1756, 278a, Votum and Conclusum of the Imperial Aulic Council to the Emperor, 9 Oct. 1756: ‘die gemeine Ruhe stöhrende, und des Reichs Hoheit, auch dessen Satzungen entgegen lauffende Schrifften, deren Urheber, Drucker, Ausstreuer, Forderer zur Straff gezogen werden sollen’. 53 Manfred Schort, Politik und Propaganda: der Siebenjährige Krieg in den zeitgenössischen Flugschriften (Frankfurt/Main, 2006). 54 Friedrich Thudichium, ‘Der Achtsprozeß gegen Friedrich den Großen und seine Verbündeten 1757 und 1758’, in Festschrift der Tübinger Juristenfakultät für Rudolph von Ihering (Tübingen, 1892), pp. 159–85. 55 Johann Jacob Moser, Abhandlung von den Rechten ihro kaiserl. Majestät, des Reichs=Convents, derer Reichs=Gerichte, und derer Interessenten selbst in würcklichen Land=Frieden=Bruchs=Sachen. Erster Theil (Nürnberg and Leipzig, 1757). 56 Ibid., p. 8. 57 Ibid., p. 10: ‘ohnwiedersprechlich ein Feind der Ruhe und Sicherheit unseres Vaterlandes, ja der gesamten Grundverfassung des Deutschen Reichs’. © The Author(s) 2018. Published by Oxford University Press on behalf of the German History Society. All rights reserved. This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model) http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png German History Oxford University Press

The Holy Roman Empire of the German Nation as an Order of Public Peace

German History , Volume 36 (3) – Sep 1, 2018

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Oxford University Press
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© The Author(s) 2018. Published by Oxford University Press on behalf of the German History Society. All rights reserved.
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0266-3554
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Abstract

Abstract This article proposes an alternative view of German imperial and constitutional historiography for the early modern period. It helps to answer the question of what held the Holy Roman Empire together. The Perpetual Public Peace formulated at the 1495 Diet of Worms remained valid until the demise of the Holy Roman Empire in 1806 and thus formed the central element of the imperial constitution. For this reason the Empire can be regarded as a system of Public Peace. This fundamental idea, formulated in the Public Peace of the reign of Maximilian I, was not entirely fixed at the outset and was thus capable of being extended. It was powerful enough to settle several security dilemmas and conflicts over the following three centuries. The basic idea of Public Peace was so strong that it could be re-established after each and every crisis. The agreements brokered at the 1495 Diet of Worms were the starting point for the development of a constitution and the starting point for the normative and institutional development of the system of Public Peace until 1806. Changes in the system were prompted periodically by domestic conflicts that challenged the system but never destroyed it. The article concludes with a case study that demonstrates that the idea of the Empire as a system of Public Peace was still relevant to the Emperor and the Empire in the eighteenth century. I: Introduction The Osnabrück politician, historian and commentator on the imperial constitution Justus Möser (1720–1794), who wrote numerous essays as publisher of the regional weekly newspaper the Wöchentliche Osnabrückische Anzeigen, also studied the history of the Holy Roman Empire and its constitution.1 Like many of his contemporaries, he was motivated by the question of what held the Empire together and how its political system could be described in a coherent and definitive manner. In his ‘Proposal for a New Plan of German Imperial History’ (Vorschlag zu einem neuen Plan der deutschen Reichsgeschichte), he developed the following idea: In my opinion, a history of our German Empire as it is today needs to start with this large and happy confederation, which is known as Maximilian’s Public Peace [Landfrieden], and in the process, the start and the progress, as well as the complete destruction of the old Empire, need to be transformed into a single treatise, into a single representation. From the latter, the historian would first show why this new confederation was necessary, then show its form, and then add everything else that had happened since then, either by way of improvement or diminution of the new system.2 Möser then explained his thinking by quickly outlining the most important events of 1495: the establishment of the Imperial Chamber Court, the management of peace and justice, the agreement to introduce the Common Penny, and the formalization of the Imperial Diet. Finally, surveying the historical development at the imperial level and in the territories, Möser postulated that the Empire had in fact thereby become a confederation. This led to an improvement in the inner condition of the Empire and furthermore each ruler within the Empire was now expected to create the corresponding institutions while under the protection of the Public Peace: ‘All initiatives now undertaken by the Empire will always serve the purpose of the confederation, [the Emperor and the estates] will join forces in order to resist attacks from outside and prevent every inner subversion.’3 The imperial electoral capitulations were also interpreted in accordance with this understanding, because they would have told the Emperor, as the supreme judge in relation to the Public Peace, what he was allowed or not allowed to do. In short, the entire history of Germany from the time of Maximilian’s Public Peace onward to the current hour is transformed into a single representation, into the story of the perfection of the formula that became the collectively accepted basic law of the new Empire.4 For Möser the Perpetual Public Peace (Immerwährende Landfrieden), or Maximilian’s Public Peace, was indeed a historic turning point, but it did not signify the end of the general Public Peace idea. Rather it marked the beginning of a new epoch whose mainstay was the Perpetual Public Peace as the Empire’s fundamental law. For Möser this ‘formula’ was the key to the imperial constitution. It allowed him to characterize the Empire’s history after 1495 more effectively than others who were writing at the time. In Möser’s opinion, the maintenance of the Public Peace was the joint task of the Emperor and the imperial estates collectively. While the rulers of the territories were required to apply the Public Peace laws, particularly the police legislation (Policeygesetzgebung), within the framework of their territorial laws, the Emperor and the imperial estates were jointly responsible for maintaining the peace in the Empire generally. That meant, first, defending the Empire against external attacks, and secondly, dealing with and resolving violent conflicts between the imperial estates, which always had the potential to endanger the existence of the entire Empire. Möser developed his ideas against the backdrop of two major European wars, the War of the Austrian Succession (1740–1748) and the Seven Years War (1756–1763). Based on his own experience, he was absolutely convinced that the existing imperial constitution was best suited to safeguarding the peace and, in particular, to ensuring the continued existence of the many smaller imperial estates.5 This explains his strong emphasis on the Empire as a constitutional system of Public Peace. Möser was never able to carry out his plan to write a new German imperial history. Nor did the historians who followed him take this idea any further. On the contrary, depending on changing political frameworks, the historiography of the Empire saw a variety of developments, trends and perspectives. Even the re-evaluation of the Holy Roman Empire of the German Nation that took place during the second half of the twentieth century did not result in a renaissance of the idea of the Empire as a system of Public Peace. Indeed, the whole subject of the Empire’s Public Peace was placed ad acta; it was simply ignored. By contrast this article will argue, just as Möser did, that the Perpetual Public Peace of 1495 formed the central element of the imperial constitution until the dissolution of the Empire in 1806 and that the Empire should thus be regarded as a system of Public Peace. Starting from this assumption, the article will show the importance of presenting a narrative of the history of the Empire and its constitution which, in contrast to others, takes the idea of Public Peace as the basis for the constitution as its starting point. For, despite all conflicts and wars, the basic idea of Public Peace remained so strong that it could be re-established after each and every crisis until 1806. Ultimately, the idea of the Holy Roman Empire as a system of Public Peace offers a clear answer to the question of what held the Empire together. At the same time, however, it also shows that there is a tradition of peace in German history—a perspective that is often neglected due to the catastrophes of the twentieth century. In view of the challenges currently faced by German politicians, the act of remembering this German tradition of peace could well serve as a point of orientation for a proactive commitment to peace in the world today. In order to demonstrate the validity of this thesis, the article will proceed in the following stages. First (part II), the genesis of the idea of the Empire as a system of Public Peace will be explained. The 1495 Diet of Worms and the results achieved there will be emphasized as the starting point of the development of the early modern German constitution. The next section (part III) will focus on the normative and institutional development of the German system of Public Peace in the early modern period under the impact of recurring security dilemmas. The following section (part IV) will examine the nature of these continual conflict situations. A case study (part V), of the crisis of the Empire at the start of the Seven Years War, will then illuminate the ways in which the idea of the Empire as a system of Public Peace was still a motivating force in the minds of both the Emperor and the imperial estates in the eighteenth century. II: The Holy Roman Empire as an Order of Public Peace The term Public Peace (Landfrieden) is to be understood as ‘an order of peace that is founded on the basis of a renunciation of violence, spatially organised and originally limited in terms of duration’. Horst Carl writes that, at a basic level, ‘peace was to be achieved and maintained by replacing the feud as a means of asserting eventual legal claims and rights or punishing wrongdoing through making legal regulations and the corresponding court or arbitration bodies legally binding’.6 Unlike other European monarchs, the German Emperors of the Holy Roman Empire were not able to impose a comprehensive ban on feuding and so assert a general peace during the Middle Ages. Yet they still claimed that they were responsible for maintaining the Public Peace.7 In light of this, the absence of actual peace during the late Middle Ages was increasingly regarded as ‘the failure of the kingdom in its central role’.8 The preservation of peace was decentralized over time by secular princes, who came together and pledged oaths to guarantee the maintenance of inner-territorial peace. According to Horst Carl, the protection of the Public Peace was thus realized through a plethora of organizations dedicated to securing collective security. Leagues and associations were thus formed, such as the Swabian Union of 1488, which not only protected the Public Peace on a regional level but also provided important impulses for the Imperial Public Peace of 1495.9 The struggle to secure internal peace resulted in political consolidation and forced a major constitutional change in the late middle ages and at the beginning of the early modern era. It was solely due to this development that institutions were created and mechanisms developed as the core of the Empire that were intended to protect and maintain peace; the maintenance of that peace henceforth became the Empire’s raison d’être. Since the complementary structure of the Empire in the early modern period was itself a product of the rivalry between the Emperor and the imperial estates, the question of who was responsible for the Public Peace was thus of utmost importance. In effect, this became a struggle for hegemony within the Empire. The conflict between Emperor Maximilian I and the imperial estates over the imperial constitution resulted in the ‘perpetual [i.e. unlimited] peace’ (Ewiger Landfriede), which was agreed at the Diet of Worms in 1495. At the same time the Imperial Chamber Court (Reichskammergericht) was created for the implementation and safeguarding of the peace. The Perpetual Public Peace also required a force for its execution and this was dealt with in the regulations for the ‘handling of peace and law’ (Handhabung Friedens und Rechts). The Imperial Diet (Reichstag), constituted as a forum of communication between Emperor and Empire, held ultimate responsibility, which also underlined its autonomy. An imperial tax, the so-called Common Penny (Gemeiner Pfennig), was intended not just to secure the financing of the Imperial Chamber Court, but also to ensure that the financial means were available for military action to be taken against those who breached the peace.10 This was a system that was designed to create a general and perpetual peace through an unconditionally recognized ban on feuding and violence.11 The Perpetual Public Peace was essentially contractual in nature, for in principle it obligated only those imperial estates that had actually explicitly agreed to the regulations to comply with them.12 In 1495, however, all assented to the proposals, which came to be regarded as fundamental laws of the Empire. According to the terms of the Perpetual Public Peace, all disputes were to be settled peacefully in a court of law. Anyone who nonetheless engaged in feuding and violent actions would fall under the imperial ban, that is to say, they would be outlawed.13 Irrespective of their status or titles they would be subject to harsh punishment. Thus German scholars speak of the criminalization of the feud. As the guardian of the Public Peace, the Emperor made all imperial estates and subjects promise to comply with the articles of the peace, with reference to the oaths given and under the threat of royal disfavour and the most severe punishment specified by the law of the Empire. A great variety of bans related to the treatment of those found guilty of proven breaches of the peace. These were meant to ensure enforcement and compliance. In addition to those who actually breached the peace, those who provided support to them were also threatened with banning and ostracism. III: Normative and Institutional Expansion of the Order of Public Peace The basic text of the Perpetual Public Peace remained unchanged, but it was repeatedly confirmed, reiterated and continuously extended by subsequent imperial recesses and imperial laws. Numerous additions were made that reflected the changing security dilemmas of the early modern period. The first extensions of the peace statute were undertaken very soon, at the Imperial Diet held at Freiburg im Breisgau in 1498.14 A number of further additions to the Perpetual Public Peace followed at subsequent Imperial Diets, which, together with other additions made by Emperor Charles V, were then confirmed and systematically ordered both in his electoral capitulation and in the recess of the Diet of Worms in 1521.15 Special preventive laws were also passed that extended the protection of the Public Peace and aimed to prevent conflicts from arising that might very well have ended in breaches of the Public Peace.16 These included the specification of legal procedures that could be implemented before disputes escalated to the point of open conflict and violence. Such a preventive legal procedure was, in fact, developed at the Imperial Chamber Court itself. The court could issue orders designed to preserve or to re-establish the Public Peace either officially or within the framework of legal procedures in the event of a potential breach of the Public Peace or when acts of violence had already occurred. This was designed to diminish the risk of a threatening escalation of a dangerous situation. At the same time, the court was also entitled to summon an aggressor under the threat of a fine. Starting from these first penalty mandates, the Imperial Chamber Court developed a complex mandate procedure (Mandatsprozess) during the sixteenth century.17 This was an extraordinary form of summary procedure that is comparable with the preliminary injunctions used in the legal process today. This type of procedure became ‘the specific procedural instrument for ensuring the Public Peace’, and it effectively supplemented the original mechanisms of the Perpetual Public Peace.18 The legal procedure could lead either to someone who breached the peace being brought before a court or to the imposition of an imperial ban. From the middle of the seventeenth century such cases generally involved the issue of an enforcement mandate. In contrast to the Imperial Chamber Court, the Imperial Aulic Council (Reichshofrat) was not created as a protective institution for the system of Public Peace, but developed as part of the administrative reforms that were undertaken in 1497–98 when the Imperial Privy Council was restructured.19 Recent research has found evidence of political calculation in its creation: the aim was to confront the corporative Imperial Chamber Court of 1495—the princes’ court—with a supreme court that was controlled by the Emperor and that would enable him to regain the political initiative within the framework of the imperial reforms.20 Besides its function as a court, the Imperial Aulic Council was also the highest feudal court and advisory body to the Emperor. The Imperial Chamber Court and the Imperial Aulic Council had almost exactly the same competencies: initial jurisdiction in the event of a breach of the Public Peace and sanctioning legal action that was to be taken by or against imperial estates. The Imperial Aulic Council had exclusive jurisdiction over all matters that affected the Emperor’s prerogative rights, the so-called Reservatrechte, in other words the Emperor’s right to grant privileges, ennoble individuals or promote existing nobles, and issue declarations of attainment of majority or letters of protection, as well as his authority to decide feudal issues. The function of the Imperial Chamber Court and the Imperial Aulic Council as the highest appeal courts in the Empire was of the greatest importance. Their competence could only be limited by an exemption granted by the Emperor (privilegium de non appellando). In order to receive this, the imperial estates needed to establish multi-tiered court systems in their territories, for which the highest imperial courts served as the model. The scrutiny of the decisions of the territorial courts (Appellationsprozesse) in the course of appeals also exerted strong pressure on the imperial estates to participate in the execution of the Empire’s system of Public Peace in their own territories. A central difference between the two supreme courts in the Holy Roman Empire lay in the procedure practised in the initial instance of a due process.21 While the procedures at the Imperial Chamber Court became ever more regulated through a differentiated and detailed order of procedure (Kameralprozess), the Imperial Aulic Council did not follow a stilus curiae. That also applied to the ban process.22 In this way, the Imperial Aulic Council showed itself to be significantly more flexible and offered a variety of different modes of action. Through doing so, it enabled the Emperor to offset the competencies that he had lost in other areas with regard to preserving and ensuring the peace. As Matthias Weber notes, ‘the Emperor and the Imperial Aulic Council still retained the ban, while the Imperial Chamber Court ceased to employ this means of legal redress’.23 This made it possible to uphold the Emperor’s claim to be the guardian of the Public Peace, while at the same time representing imperial power. IV: The Security Dilemma The Reformation and the emergence of two confessions within the Empire severely tested the concept of Public Peace, leading ultimately to its expansion to include religion. Lawsuits concerning religious matters (so-called ‘Reformation lawsuits’) were introduced at the Imperial Chamber Court as matters concerning the Public Peace from the start, although relatively few cases were instigated during the early period of the Reformation.24 In the end, however, the conflicts between Protestants and Catholics were fought not as questions of religious truth but rather within the system of Public Peace that had been established in 1495.25 The Schmalkaldic War of 1546/47 was officially not a religious war since it technically involved the enforcement of the imperial ban against Hesse and Electoral Saxony, who had breached the Public Peace when they invaded Brunswick.26 This automatically paved the way for the Emperor and the Empire to maintain the Public Peace by falling back on the instruments that had been consensually created in 1495, which duly brought about a legal and political solution to the religious conflict. The Augsburg Religious Peace (Augsburger Religionsfrieden) was declared to be ‘part of the Worms Imperial Public Peace renewed by the Augsburg Imperial Diet’ and was thereby subject to the legal guarantees for the collective protection of the peace.27 The 1555 definition of a breach of the Public Peace included two additions, which reflected the fundamental changes that had occurred in the power relations within the Empire since 1548.28 No imperial estate of the Augsburg Confession (i.e. Protestant) was to be overrun by violence or hindered in its beliefs or in the maintenance of ceremonies and ecclesiastical orders because of the measures a ruler decided upon concerning religion. In cases of religious conflicts, peaceful ways and means of finding solutions were to be looked for. In return, Lutherans were compelled to leave those who retained the Catholic faith alone and not to undertake any actions against them.29 The Reichsexekutionsordnung, or ordinance concerning the implementation of imperial law, that was contained in the recess of 1555 was also included among the fundamental laws of the Empire. Because the individual imperial estates had refused to execute and implement the judgements of the Imperial Chamber Court and did not meet its obligation of compliance, the Imperial Circles (Reichskreise) were commissioned to deal with breaches of the Public Peace and to implement the rulings of the highest court.30 This in effect meant a weakening of the Emperor’s position as the guardian of the Public Peace. In turn, the importance of the Imperial Chamber Court was enhanced by means of this extensive and detailed statute. One of the expansions entailed the incorporation of the so-called procurator fiscal (Reichsfiskal) into the system of Public Peace; his duties and competencies were explained in detail and set down within the framework of the law concerning the procedure of the Imperial Chamber Court of 1555 (Reichskammergerichtsordnung).31 As a public prosecutor he intervened in cases where the Emperor’s interests and the Public Peace of the Empire had been violated. This included—in addition to monitoring the Public Peace—cases where a ruler had breached his allegiance to the Emperor, for example by entering into the military service of a foreign sovereign. At the end of the sixteenth century, the Imperial Aulic Council established its own procurator fiscal, probably in order to ‘transfer the fiscal matters from the weakened Imperial Chamber Court to the Imperial Aulic Council’.32 At least up until the end of the sixteenth century, the extended system of Public Peace had functioned in various areas that went far beyond confession-related conflicts.33 Then, as the confessional fronts hardened again from the end of the sixteenth century on owing to religious processes and the imposition of the imperial ban on Donauwörth, the Order of Public Peace was once again effectively nullified, which ultimately resulted in the outbreak of the Thirty Years War in 1618.34 The solution adopted in 1495, that acts of violence between two imperial estates would be allowed only as punishment for breaches of the Public Peace, and the definition of all inner threats to the Empire as potential breaches of the Public Peace ultimately set the procedural precedent for dealing with future security dilemmas within the Empire successfully. Even during the Thirty Years War, military actions undertaken by the Catholic League were justified as executions of the Public Peace intended to re-establish the Peace of Augsburg.35 It was logical, therefore, that the 1648 Osnabrück Peace Treaty was regarded as a renewal of the Augsburg settlement and as a legal update of the Public Peace, which now included the Calvinists and even more precise regulations than in 1555.36 Against the backdrop of the experiences of the Thirty Years War, after 1648 the question of how the imperial ban should be imposed on those who breached the Public Peace became a major concern within the constitutional conflict between the Emperor and the imperial estates. Until the Thirty Years War, the Emperor and the Imperial Chamber Court were both entitled to impose an imperial ban and each made use of this entitlement in well-known and richly documented cases, without ever questioning the right of the other to do so.37 At the beginning of the seventeenth century, and particularly during the Thirty Years War, the Bohemian revolt prompted a new formulation of the imperial interpretation of the law, which seriously challenged the 1495 Public Peace. The core question concerned the involvement of the imperial estates or the Imperial Diet in the imposition of the imperial ban. The Imperial Aulic Council agreed with the Emperor’s new view, that an obvious breach of the Public Peace and ‘notorious rebellion’ did not require him to summon and hear the accused and that the guilty parties had in effect passed judgement upon themselves through their actions.38 In advancing this view, the Imperial Aulic Council referred to the Public Peace Order that had been issued by the Imperial Diet in 1559. This is why the Imperial Aulic Council attached such significance to cases like this: it was not acting as a court of law but rather as an advisory body to the Emperor. This legal opinion of the Imperial Aulic Council was then employed in various imperial ban declarations during the Thirty Years War, for example against Ernst von Mansfeld, Elector Frederick V of the Palatinate and other princes.39 The Protestant side regarded this as a radical infringement of the constitution. The question of how the imperial ban should be imposed on those who breached the peace had a fundamental constitutional significance, which is probably why it was put on the back burner at the Westphalian peace deliberations.40 It was only in the context of the discussions of the Perpetual Electoral Capitulation and the electoral capitulation of Emperor Charles VI in 1711 that this issue was resolved.41 Finally Emperor and Empire returned to the original system and once more agreed that the voice of the imperial estates had to be heard when it came to imposing imperial bans, although one can see a clear shift in competencies between the Imperial Diet and the supreme courts.42 On the whole, the tendency on the part of the law-makers in relation to the Public Peace and the imposition of imperial bans was towards greater regulation. The result was that neither the Imperial Chamber Court nor the Imperial Aulic Council dealt with many such cases during the eighteenth century.43 But that does not mean that the question of how to deal with breaches of the Public Peace and the imperial ban was simply put aside ad acta. It is far more the case that one can assume a broad acceptance and internalization of the terms of the whole system of Public Peace. Bearing this in mind, any imperial estate’s act of violence against another must have been rather alarming. Such actions would have been perceived not only as a danger to the Public Peace, but even—in the eyes of contemporaries—as an attack on the Empire’s very existence. V: Case Study: The Crisis of 1756 The rise of Brandenburg-Prussia and the evolving Prussian-Austrian dualism led to a serious stress test of the Empire. In 1756, at the start of the conflict, the Emperor declared the incursion of Brandenburg-Prussia into Electoral Saxony to be a breach of the Public Peace. He issued a decree against the illegal incursion and efforts were even made in Vienna to instigate a process to impose an imperial ban on Prussia.44 Emperor Francis I had at his disposal all the legal instruments that he needed to use against Frederick II of Prussia. After Electoral Saxony protested, the Emperor officially informed the Imperial Aulic Council on 9 September 1756 about Prussia’s aggressive act and asked for an expert opinion on the question of how he should proceed in accordance with his imperial duties.45 The Imperial Aulic Council responded on 13 September with a report, as well as a further Conclusum, in which the military actions undertaken by Frederick II were deemed illegal. Specifically, they were however and obviously, not only in contradiction to the Public Peace and the imperial constitution, but were also done in such a way … that the authority of the Emperor and the sovereignty of the Empire were insulted and its constitution, each and every imperial estate and therefore its very structure and order, were violated in similar fashion, and as a result, were threatened with joint and shared demise. Therefore the act itself was a hostile attack and occupation of the Empire and the complete outrage perpetrated by the Electoral Prince of Brandenburg is to be seen as an attack against his imperial majesty and the Empire.46 The reference to the complete collapse of the Empire and its constitution became a crucial argument on all sides from this point onwards. According to the Conclusum the Emperor was obliged to protect the Imperial Public Peace. Using the authority of his highest judicial office, the Emperor ordered the King in Prussia as the Elector of Brandenburg to withdraw his troops, to give back all the lands he had taken and to pay reparations.47 Furthermore, following another proposal from the Imperial Aulic Council, so-called Avocatoria were issued to the Prussian troops and to all Prussian subjects, which called on them to refuse the orders of the Prussian military commanders and to abandon the flag. In the same vein, all imperial knights were banned from performing military service for the Prussian crown under the threat of sanction. The princes who held the highest office in the imperial circles were instructed to make troops available for the conflict against Prussia in accordance with the enforcement order.48 The Imperial Aulic Council intended to use all the measures provided by imperial legislation to protect the Empire from further danger and it clearly believed that time was of the essence. The Prussian incursion into Electoral Saxony provoked outrage and was described as a grievous crime, yet there was initially some delay in taking steps to penalize and punish the King in Prussia as the Elector of Brandenburg. First, it was decided to see ‘how the Empire itself would react’.49 The Imperial Aulic Council believed that the entire incident was unprecedented and that it had taken on such a form that it affected the whole Empire. The Empire’s support was absolutely necessary for security and lasting calm and order to be re-established. This is why the council believed that the Emperor should issue a decree (Kommissions-Dekret) outlining his approach and that he should persuade the Imperial Diet to take action against Frederick’s breach of the Public Peace. Following the incursion of Brandenburg-Prussia into Bohemia, the Imperial Aulic Council reacted with extreme agitation in a further Conclusum, of 9 October 1756. The Empire was in flames!50 The following measures, which were to be advertised to the Imperial Diet in a second imperial decree, were recommended: investigations by the procurator fiscal against Frederick II, which were strictly in accordance with the imperial legal framework of the intended imperial ban proceedings; activation of the imperial circles in order to provide military assistance against Prussia; and action against insubordinate imperial estates.51 In contrast to the Emperor’s first decree, this one went much further: now ‘the writings that disturb the public peace and which are directed against the Empire’s sovereignty and its statutes’ were also targeted: ‘their authors, printers, distributors, supporters should be subject to sanction’.52 By means of these decrees, the Imperial Aulic Council responded to the massive Prussian propaganda that had already been disseminated prior to the start of the war, predominantly by the Prussian envoy at the Imperial Diet, Erich Christoph von Plotho, and that had been designed to persuade the Protestant imperial estates to take Prussia’s side.53 In this context, the Imperial Diet developed into a ‘secondary battlefield’, on which both Brandenburg-Prussia and the Emperor tried to gain the support of the imperial estates for their respective legal positions. Both sides claimed to be acting in the best interests of the Empire and its constitution, and each warned about the activities of the other, representing these as damaging the Empire. As a result, there was a growing debate over whether Frederick II had indeed breached the Public Peace and whether the Emperor and the Imperial Aulic Council had acted legally within the framework of the imperial constitution. All parties were aware that the real issue at stake here was the future of the Empire as a system of Public Peace. The imperial argument eventually prevailed and with the votes of the Catholic majority and a number of Protestant imperial estates explicitly referring to the decisions of the Imperial Aulic Council, the Imperial Diet decided on 17 January 1757 to impose an imperial ban on Brandenburg-Prussia.54 This happened despite all the Prussian propaganda and the criticism of the allegedly precipitate actions of the Emperor and the Imperial Aulic Council. The violations by Brandenburg-Prussia of the imperial constitution and its anti-imperial actions were too obvious. The legal case advanced by the Prussians was too flimsy. Against the background of this experience, specifically the imperial ban procedure instigated in 1757, the public legal debate about the Public Peace reached its climax. Leading commentators on the Empire and its constitution such as Johann Jakob Moser revived the idea of the Perpetual Public Peace as the highest law and ‘reason for common security’ within the Empire.55 Moser believed that the Empire was now in great danger. He feared the destruction of the entire imperial constitution. From his point of view, that meant the threat of the complete collapse of all order, following which Germany would become the playground for the whole of Europe.56 In his opinion, anyone who turned against the highest imperial courts or did not follow their judgements was ‘without doubt an enemy of the calm and security of our fatherland, indeed the entire fundamental constitution of the German Empire’.57 At the same time, however, Moser called upon the imperial tribunals and the Imperial Courts to administer justice in an unbiased manner. Anyone who did not do this should be recognized, in his opinion, as an enemy of the constitution. VI: Conclusion First, the Public Peace created by an ingenious act in 1495 was the true foundation of the imperial constitution, although it could not prevent all wars on German soil. In general, however, it dramatically limited the number of conflicts within the Empire for more than 300 years. Secondly, the idea of a general and perpetual public peace was strong enough to be re-established after every crisis. Thirdly, even during the Thirty Years War, the Public Peace served as a common denominator for the various German antagonists until the Peace Treaty of Prague in 1635 and once again, for all sides, during the complex Westphalian peace negotiations from 1643 to 1648, when the parties finally managed to distinguish between the separate fields of dispute. Obviously, it was not a sufficiently powerful concept to hinder foreign crowns from invading the Holy Roman Empire. Yet the Public Peace did not fail in 1546/47, in 1648, or in the middle of the eighteenth century. On the contrary, Brandenburg-Prussia’s breach of the Public Peace obliged the Emperor and the Empire to revert to the Public Peace as a fundamental law of the imperial constitution. The reflections of legal commentators played an important role in this process. The imperial report of 17 January 1757, which confirmed the measures of the Imperial Aulic Council and approved the imperial execution against Brandenburg-Prussia, demonstrated that the Empire continued to act on the basis of the Perpetual Public Peace. The idea of a perpetual public peace not only constituted the very foundation of the constitution of the Holy Roman Empire for over three centuries, but also experienced a significant renaissance in the middle of the eighteenth century. Footnotes This article is based on a lecture given to the Cambridge New Habsburg Studies Network on 23 May 2017 and on Siegrid Westphal, ‘Reichskammergericht, Reichshofrat und Landfrieden als Schutzinstitute der Reichsverfassung’, in Thomas Simon and Johannes Kalwoda (eds), Schutz der Verfassung: Normen, Institutionen, Höchst- und Verfassungsgerichte (Berlin, 2014), pp. 13–37. 1 Thorsten Heese and Martin Siemsen (eds), Justus Möser 1720–1794: Aufklärer, Staatsmann, Literat. Die Sammlung Justus Möser im Kulturgeschichtlichen Museum Osnabrück (Bramsche, 2013). 2 Akademie der Wissenschaften zu Göttingen (ed.), Justus Mösers sämtliche Werke: historisch-kritische Ausgabe, 14 vols in 16 (Berlin, Oldenburg/Hamburg, Osnabrück, 1943–90), vol. 7 (1954), pp. 130–3, at p. 131. 3 Ibid., vol. 7, p. 132. 4 Ibid. 5 Anton Schindling, ‘Justus Möser—Fiktion und Realität des Alten Reiches’, in Winfried Woesler (ed.), Möser-Forum 3 / 1995–2001 (Osnabrück, 2002), pp. 205–19, at p. 213. 6 Horst Carl, ‘Landfriede’, in Enzyklopädie der Neuzeit 7 (2008), cols 493–500, at col. 493. For an overview see Arno Buschmann, ‘Ewiger Landfriede’, in Handwörterbuch zur deutschen Rechtsgeschichte I (2nd edn, Berlin, 2008), cols 1447–50. 7 Matthias G. Fischer, Reichsreform und ‘Ewiger Landfrieden’: über die Entwicklung des Fehderechts im 15. Jahrhundert bis zum absoluten Fehdeverbot von 1495 (Aalen, 2007); Heinz Angermeier, Königtum und Landfriede im deutschen Spätmittelalter (Munich, 1966). 8 Horst Carl, ‘Landfrieden als Konzept und Realität kollektiver Sicherheit im Heiligen Römischen Reich’, in Gisela Naegle (ed.), Frieden schaffen und sich verteidigen im Spätmittelalter / Faire la paix et se défendre à la fin du Moyen Age (Göttingen, 2011), pp. 121–38, at p. 122. 9 Horst Carl, Der schwäbische Bund 1488–1534: Landfrieden und Genossenschaft im Übergang vom Spätmittelalter zur Reformation (Leinfelden, 2000); Guido Komatsu, Landfriedensbünde im 16. Jahrhundert (Göttingen, 2001). 10 Westphal, ‘Reichskammergericht’. 11 Jürgen Weitzel, ‘Die Rolle des Reichskammergerichts bei der Ausformung der Rechtsordnung zur allgemeinen Friedensordnung’, in Ingrid Scheurmann (ed.), Frieden durch Recht: das Reichskammergericht von 1495 bis 1806 (Mainz, 1994), pp. 40–8; Sabine Jaberg, Systeme kollektiver Sicherheit in und für Europa in Theorie, Praxis und Entwurf: ein systemwissenschaftlicher Versuch (Baden-Baden, 1998). 12 Fischer, Reichsreform, p. 223. 13 Matthias Weber, ‘Zur Bedeutung der Reichsacht in der Frühen Neuzeit’, in Johannes Kunisch (ed.), Neue Studien zur frühneuzeitlichen Reichsgeschichte (Berlin, 1997), pp. 55–90. 14 Buschmann, ‘Ewiger Landfriede’, cols 1448–9. 15 Tobias Branz, ‘Von Religionsfriedenstatbeständen, Landfriedensbruch und Reformationsprozessen am Reichskammergericht’, in Anja Amend-Traut, Anette Baumann, Stephan Wendehorst and Steffen Wunderlich (eds), Die höchsten Reichsgerichte als mediales Ereignis (Munich, 2012), pp. 151–77, at p. 151. 16 Ibid., p. 152. 17 Adolf Laufs, Die Reichskammergerichtsordnung von 1555 (Cologne and Vienna, 1976); Manfred Hinz, ‘Der Mandatsprozeß des Reichskammergerichts’ (Dissertation [jurisprudence], Freie Universität Berlin, 1966); Bettina Dick, Die Entwicklung des Kameralprozesses nach den Ordnungen von 1495–1555 (Cologne and Vienna, 1981); Manfred Uhlhorn, Der Mandatsprozeß sine clausula des Reichshofrats (Cologne, Weimar and Vienna, 1990); Bernd Schildt, Die Entwicklung der Zuständigkeit des Reichskammergerichts (Wetzlar, 2006). 18 Weitzel, ‘Die Rolle des Reichskammergerichts’, p. 45. 19 Oswald von Gschließer, Der Reichshofrat: Bedeutung und Verfassung, Schicksal und Besetzung einer obersten Reichsbehörde von 1559 bis 1806 (Vienna, 1942); Wolfgang Sellert, Prozeßgrundsätze und Stilus Curiae am Reichshofrat im Vergleich mit den gesetzlichen Grundlagen des reichskammergerichtlichen Verfahrens (Aalen, 1973); Wolfgang Sellert (ed.), Die Ordnungen des Reichshofrates, 2 vols (Cologne and Weimar, 1980–90); Volker Press, ‘Der Reichshofrat im System des frühneuzeitlichen Reiches’, in Friedrich Battenberg and Filippo Ranieri (eds), Geschichte der Zentraljustiz in Mitteleuropa: Festschrift für Bernhard Diestelkamp zum 65. Geburtstag (Weimar, Cologne and Vienna, 1994), pp. 349–64; Wolfgang Sellert, ‘Der Reichshofrat’, in Bernhard Diestelkamp (ed.), Oberste Gerichtsbarkeit und zentrale Gewalt im Europa der frühen Neuzeit (Cologne, Weimar and Vienna, 1996), pp. 15–44. 20 Eva Ortlieb, ‘Vom königlichen/kaiserlichen Hofrat zum Reichshofrat. Maximilian I., Karl V., Ferdinand I.’, in Bernhard Diestelkamp (ed.), Das Reichskammergericht: der Weg zu seiner Gründung und die ersten Jahrzehnte seines Wirkens (1451–1527) (Cologne, Weimar and Vienna, 2003), pp. 221–89; Eva Ortlieb, ‘Die Entstehung des Reichshofrats in der Regierungszeit der Kaiser Karl V. und Ferdinand I. (1519–1564)’, Frühneuzeit-Info, 17 (2006), pp. 11–26. 21 Eva Ortlieb, ‘Das Prozeßverfahren in der Formierungsphase des Reichshofrats (1519–1564)’, in Peter Oestmann (ed.), Zwischen Formstrenge und Billigkeit: Forschungen zum vormodernen Zivilprozeß (Cologne, Weimar and Vienna, 2009), pp. 117–38, at p. 117. 22 Weber, ‘Zur Bedeutung der Reichsacht’, p. 81. 23 Ibid. 24 For an overview of the literature, see Branz, ‘Von Religionsfriedenstatbeständen’. 25 Anton Schindling, ‘Gab es Religionskriege in Europa? Landfrieden und Völkerrecht statt Glaubenskampf und “Strafgericht Gottes”‘, in Axel Gotthard, Andreas Jakob and Thomas Nicklas (eds), Studien zur politischen Kultur Alteuropas: Festschrift für Helmut Neuhaus zum 65. Geburtstag (Berlin, 2009), pp. 275–98, at p. 275. 26 Siegrid Westphal, ‘Die Entwicklung des Schmalkaldischen Bundes im Spiegel seiner Bundesabschiede’, in Verein für Schmalkaldische Geschichte (ed.), Der Schmalkaldische Bund und die Stadt Schmalkalden (Schmalkalden, 1996), pp. 19–63. 27 Schindling, ‘Gab es Religionskriege in Europa?’, p. 292. 28 Branz, ‘Von Religionsfriedenstatbeständen’, p. 162. 29 Quoted in ibid., p. 177. See also Axel Gotthard, Der Augsburger Religionsfrieden (Münster, 2004); Heinz Schilling and Heribert Smolinsky (eds), Der Augsburger Religionsfrieden 1555 (Heidelberg, 2007). 30 Udo Gittel, Die Aktivitäten des Niedersächsischen Reichskreises in den Sektoren ‘Friedenssicherung’ und ‘Policey’ (1555–1682) (Hanover, 1996). 31 Björn Alexander Rautenberg, Der Fiskal am Reichskammergericht: Überblick und exemplarische Untersuchungen vorwiegend zum 16. Jahrhundert (Frankfurt/Main, 2008); Gernot Peter Obersteiner, ‘Das Reichshoffiskalat 1596 bis 1806: Bausteine zu seiner Geschichte aus Wiener Archiven’, in Anette Baumann, Peter Oestmann, Stephan Wendehorst and Siegrid Westphal (eds), Reichspersonal: Funktionsträger für Kaiser und Reich (Cologne, Weimar and Vienna, 2003), pp. 89–164, at p. 98; Laufs, Die Reichskammergerichtsordnung, p. 99. 32 Obersteiner, ‘Das Reichshoffiskalat’, p. 89. 33 Carl, ‘Landfriede’, col. 495. 34 Bernhard Ruthmann, Die Religionsprozesse am Reichskammergericht (1555–1648): eine Analyse anhand ausgewählter Prozesse (Cologne, Weimar and Vienna, 1996). 35 Weber, ‘Zur Bedeutung der Reichsacht’, p. 67. 36 Carl, ‘Landfriede’, col. 497. 37 Weitzel, ‘Die Rolle des Reichskammergerichts’, p. 46. 38 Christoph Kampmann, ‘Der Leib des Römischen Reichs ist der Stände Eigentum und nicht des Kaisers: zur Entstehung der Konkurrenz zwischen Kaiserhof und Reichstag beim Achtverfahren’, in Wolfgang Sellert (ed.), Reichshofrat und Reichskammergericht: ein Konkurrenzverhältnis (Cologne, Weimar and Vienna, 1999), pp. 169–98, at p. 169. 39 Christoph Kampmann, Reichsrebellion und kaiserliche Acht: politische Strafjustiz im Dreißigjährigen Krieg und das Verfahren gegen Wallenstein 1634 (Münster, 1992). 40 Anton Schindling, Die Anfänge des Immerwährenden Reichstags zu Regensburg (Mainz, 1991), p. 123. 41 Kampmann, ‘Der Leib des Römischen Reichs’, p. 171. 42 Wolfgang Burgdorf, Protokonstitutionalismus: die Reichsverfassung in den Wahlkapitulationen der römisch-deutschen Könige und Kaiser 1519–1792 (Göttingen, 2015), p. 87. 43 Weber, ‘Zur Bedeutung der Reichsacht’, pp. 80–1; Dietrich Landes, Achtverfahren vor dem Reichshofrat (dissertation [jurisprudence], Johann Wolfgang Goethe-Universität Frankfurt/Main, 1964). 44 Artur Brabant, Das Heilige Römische Reich teutscher Nation im Kampf mit Friedrich dem Großen, 3 vols (Berlin and Dresden, 1904–31); Karl Otmar von Aretin, Das Alte Reich 1648–1806, vol. 3: Das Reich und der österreichisch-preußische Dualismus (1745–1806) (Stuttgart, 1997); Peter Rauscher, ‘Recht und Politik: Reichsjustiz und oberstrichterliches Amt des Kaisers im Spannungsfeld des preußisch-österreichischen Dualismus (1740–1785)’, Mitteilungen des Österreichischen Staatsarchivs, 46, (1998), pp. 269–309; Sven Externbrink, Friedrich der Große, Maria Theresia und das Alte Reich: Deutschlandbild und Diplomatie Frankreichs im Siebenjährigen Krieg (Berlin, 2006); Sven Externbrink, ‘Frankreich und die Reichsexekution gegen Friedrich II.: zur Wahrnehmung der Reichsverfassung durch die französische Diplomatie während des Siebenjährigen Krieges’, in Olaf Asbach, Klaus Malettke and Sven Externbrink (eds), Altes Reich, Frankreich und Europa: politische, philosophische und historische Aspekte des französischen Deutschlandbildes im 17. und 18. Jahrhundert (Berlin, 2001), pp. 221–53; Sven Externbrink, ‘Kommunikation—Information—Außenpolitik: Frankreich und Brandenburg-Preußen zur Zeit des Siebenjährigen Krieges (1756–1763)’, in Ralf Pröve and Norbert Winnige (eds), Wissen ist Macht: Herrschaft und Kommunikation in Brandenburg-Preußen (1600–1850) (Berlin, 2001), pp. 157–76; Michael Rohrschneider, ‘Schwierige Beziehungen! Friedrich der Große und der Immerwährende Reichstag (1745–1763)’, in Friedrich300—Studien und Vorträge, www.perspectivia.net/publikationen/friedrich300-studien/rohrschneider_beziehungen (25 Aug. 2013). 45 Rauscher, ‘Recht und Politik’, pp. 290–95; Aretin, Altes Reich, vol. 3, pp. 87–107; Brabant, Das Heilige Römische Reich, vol. 1, pp. 39–82. 46 Haus-, Hof- und Staatsarchiv, Wien (HHStA), Deductionen, Preußischer Krieg 1756, 278a, Votum and Conclusum of the Imperial Aulic Council to the Emperor, 13 Sept. 1756. The original reads ‘nicht allein dem Land-Frieden und der Reichs-Verfassung allerdings und offenbar zuwider, sondern auch allerseits so beschaffen … daß diese die Kayserliche Authorität und die Hoheit des Reichs beleidigeten und dessen Verfassung den gänzlichen Umsturz, allen und jeden Ständen aber ihrer Ordnung nach eine gleichgeartete Vergewaltigung und darmit den gemeinsamen Untergang androheten, somit in sich eine feindliche An- und Uberziehung des Reichs und sein des Churfürsten zu Brandenburg gänzliche Empörung wider Kayserliche Majestät und das Reich seye.’ 47 Rauscher, ‘Recht und Politik’, p. 291. 48 Ibid. 49 HHStA Wien, Deductionen, Preußischer Krieg 1756, 278a, Votum and Conclusum of the Imperial Aulic Council to the Emperor, 13 Sept. 1756 50 HHStA Wien, Deductionen, Preußischer Krieg 1756, 278a, Votum and Conclusum of the Imperial Aulic Council to the Emperor, 9 Oct. 1756. 51 Rauscher, ‘Recht und Politik’, p. 292. 52 HHStA Wien, Deductionen, Preußischer Krieg 1756, 278a, Votum and Conclusum of the Imperial Aulic Council to the Emperor, 9 Oct. 1756: ‘die gemeine Ruhe stöhrende, und des Reichs Hoheit, auch dessen Satzungen entgegen lauffende Schrifften, deren Urheber, Drucker, Ausstreuer, Forderer zur Straff gezogen werden sollen’. 53 Manfred Schort, Politik und Propaganda: der Siebenjährige Krieg in den zeitgenössischen Flugschriften (Frankfurt/Main, 2006). 54 Friedrich Thudichium, ‘Der Achtsprozeß gegen Friedrich den Großen und seine Verbündeten 1757 und 1758’, in Festschrift der Tübinger Juristenfakultät für Rudolph von Ihering (Tübingen, 1892), pp. 159–85. 55 Johann Jacob Moser, Abhandlung von den Rechten ihro kaiserl. Majestät, des Reichs=Convents, derer Reichs=Gerichte, und derer Interessenten selbst in würcklichen Land=Frieden=Bruchs=Sachen. Erster Theil (Nürnberg and Leipzig, 1757). 56 Ibid., p. 8. 57 Ibid., p. 10: ‘ohnwiedersprechlich ein Feind der Ruhe und Sicherheit unseres Vaterlandes, ja der gesamten Grundverfassung des Deutschen Reichs’. © The Author(s) 2018. Published by Oxford University Press on behalf of the German History Society. All rights reserved. This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model)

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German HistoryOxford University Press

Published: Sep 1, 2018

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