Episode 82 – The Constitution of the Realm

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What do you do once you have condemned your eldest son and heir to life imprisonment? Exactly, you have a party, or more precisely you have two parties. But as always with Frederick II, these are not just knees-up for entertainment, but elaborately staged political events. The first is a wedding, the second a grand get-together of the whole realm and then there is a third, a funeral of a kind you would not have expected from our rational, seemingly agnostic hero. Lots to unpack as always…


Hello and welcome to the history of the Germans: Episode 82 – The Constitution of the Realm

What do you do once you have condemned your eldest son and heir to life imprisonment? Exactly, you have a party, or more precisely you have two parties. But as always with Frederick II, these are not just knees-up for entertainment, but elaborately staged political events. The first is a wedding, the second a grand get-together of the whole realm and then there is a third, a funeral of a kind you would not have expected from our rational, seemingly agnostic hero. Lots to unpack as always…

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Last week we left Frederick sitting in judgement over his wayward son. This family rift was not based on a fundamental personality clash as had been the case with his namesake, Frederick II of Prussia, nor was it a case of unbridled ambition as it had been when Richard Lionheart and his brothers rose up against their father Henry II. This rift had been almost entirely political.

Henry (VII) in brackets believed that all the resources of the family, which meant basically the resources of Sicily, should be employed in rolling back the encroachment of royal power. He wanted to force the princes to disgorge the rights and privileges they had extracted from Philipp of Swabia and Otto IV during the recent civil wars.

Frederick’s priority was the exact opposite. Forcing the pope into a recognition of the emperor as his equal and as temporal ruler of Christendom was his great objective. And this objective could only be achieved by surrounding the papal lands on all sides. He already had the south where his kingdom of Sicily began just 100 miles from Rome. He also had a hold on Tuscany north-west of Rome. That left Lombardy, the North-eastern flank of the papal states.

Lombardy had only recently revived the Lombard League, the mighty association of Northern Italian cities that had broken the armies of the great Barbarossa. To bring Lombardy into submission required a huge military force and almost unlimited funds. The Lombards were rich, extremely warlike and their cities were well fortified. The latter is the expensive bit. Before the advent of canons, city walls could not be broken. To force entry required expensive siege towers and the stamina to starve out the population sometimes for years. You remember the sieges of tiny but fierce Crema and Alessandria, the city of straw? Frederick II needed to prepare for that and more.

And that meant he needed Sicily for the money and he needed the fierce warriors of Germany, “a land rich in soldiers” as Italian chroniclers had called it since the 10th century. By 1235 these German fighters were controlled by the princes, whether he liked it or not. A reconciliation with great imperial princes had to be made.

And that is where the aforementioned wedding comes in. Frederick’s second wife, Isabelle of Brienne, the queen of Jerusalem had died aged 16 when she gave birth to her son Konrad. This just for reference was not her first pregnancy. Since Isabella’s death in 1228 Frederick had negotiated various marriage alliance options but nothing had come of it. Now, in 1235 he was prepared to wed again. The bride he chose was another Isabelle, Isabelle Platagenent.

She was 21 years old and the sister of King Henry III of England. This marriage was a major shift in Hohenstaufen politics. Until now the Hohenstaufen tended to support the King of France in the perennial Anglo-French conflict. Meanwhile the House of Welf, their rivals had been closely related to the Angevin rulers of England. Otto IV had grown up at the English court and one of his major supporters were the merchants and citizens of Cologne who had close trading relations with the sceptred isle.   

The reason for this shift in alliances and hence the marriage was again all about Northern Italy.

Henry III had promised a dowry worth as much as 30,000 marks of silver as a contribution to the war chest, a sum significant enough, the rich king of England had to raise a special tax for it. But it is not all about money. The kingdom of France had by now stretched down south courtesy of the Albigensian crusade. That brought them uncomfortably close to the wealth of Italy. So it was quite handy that Henry III was preparing another campaign against the French to regain the lands of Anjou and Normandy, an effort that would keep the French busy.

The final and probably biggest benefit was that the marriage paved the way to a reconciliation between Welf and Hohenstaufen. As we have heard, the conflict between these two houses was not the dominant strain of domestic policy during the entire High Middle Ages. But it was a significant component, particularly these last 35 years. Though the Welf were much diminished in power, they still had some following, amongst it the city of Cologne, by now the richest, largest and most important city in Germany. To bring them into the fold, Frederick II had to address the Welf’s most painful grievance.

The mighty Welf, descendants of kings, whose family line goes back not just to Charlemagne but Odoacer and Attila the Hun, who lived in a palace in Braunschweig that rivals any imperial residence and who had been the most preeminent magnates in the empire and whose last head of house had been crowned emperor, these proud nobles had lost their status as imperial princes when Henry the Lion was stripped of his dukedoms of Bavaria and Saxony. The current head of the house of Welf was a simple noble, no duke, no landgrave, not even a meagre margrave. Nothing, just a free man with a lot of land.

In the status-ridden society of the 13th century that was a constant humiliating reminder of their fall. Frederick II was prepared to resolve that. A few months after the sumptuous wedding to Isabella in Worms he created a new duchy, the duchy of Brunswick.

The way this happened is somewhat revealing about the way vassalage worked in Germany. The current head of the house was Otto von Luneburg, called “the child” though he was now 31-years old. Otto had inherited the family possessions around Brunswick and Luneburg from his uncle, the Count Palatinate.

It is these lands that were now to be made into a separate duchy. A a duchy is by definition a fief of the emperor. In order to grant Otto these lands as a duchy, Otto first had to hand those lands over to the emperor. Legally it was a present, without recourse. Frederick then declared that: quote “Otto von Luneburg hath done us homage, and unmindful of all the hate and harassment that existed between our forefathers hath placed himself under our protection and at our service.” Unquote.

As a faithful imperial vassal Otto could expect to receive a fief that allowed him to fulfil his military obligations towards the empire. And so he received his lands back, plus Goslar and surroundings, not as his property, but as a fief, so technically a loan from the emperor. Since it was an imperial fief it could be elevated to a duchy, the duchy of Brunswick. So just to recap, Otto hands his privately owned lands to the emperor who makes them now royal lands that can be enfeoffed to that same man who previously owned them outright. This sounds like an awful deal for Otto, but it was not.

Yes, in principle the emperor could now enfeoff someone else with his lands. But that right had almost completely diminished. Already under Henry VI, the princes received the right to pass their lands by inheritance to distant family members and even to their son-in-laws. The recall of a fief was almost defunct, though we will see that Frederick and later emperors will still try.

Furthermore, Otto was now obliged to offer Frederick military support as an imperial vassal. But in return he was also entitled to imperial protection and support.

But the most important benefit however was the elevation to rank of imperial prince. That allows him to participate in imperial decision making and opens up all sorts of opportunities for consolidation and expansion of power, something that ends up for the house of Welf in a royal title.

So what about young Isabella, the one who made all this reconciliation possible? She was by all accounts an exceptionally beautiful woman, so beautiful indeed that people along her route into Germany constantly demanded to see her famous face. She received the most splendid welcome in Cologne, the city that was most keen on close relationships with England. Matthew Paris the English chronicler wrote that “Tens of thousands flocked to welcome her with flowers and palm branches and music. Riders on Spanish horses had performed with their lances the nuptial breaking of the staves, whilst ships which appeared to sail on dry land, but were drawn by horses concealed under silken coverings whilst the clerks of Colone played new airs on their instruments. The matrons seated on their balconies sang the praises of the empress’ beauty, when Isabella at their request laid aside hat and veil and showed her face”

Six weeks later the wedding was celebrated with all possible pomp and in the presence of a sea of bishops and a banner of knights. Frederick did not however stay with his bride on the wedding night. His astrologer had suggested the morning as more auspicious. Business over, he declared that Isabella was now with child and was sent to live behind closed doors in the royal palace of Palermo catered for by eunuchs and having an estimated five children. She was barely again seen in public and even her brother had to insist to be allowed to meet her.

The wedding took place in July 1235. A mere month later an even bigger gathering took place in Mainz. Frederick had called all the imperial princes to join him in one great assembly to confirm and swear upon a new constitution of the empire.

And they all came. The Archbishops of Mainz, Cologne, Trier, Salzburg, Besancon and Magdeburg. And amongst the bishops came those of Regensburg, Bamberg, Konstanz, Augsburg, Strassburg, Speyer, Basel, Hildesheim Osnabrück, Lüttich, Utrecht, Cambrai, Metz, Verdun, Naumburg, Merseburg, Passau, Eichstaedt and Freising. Then we had the great abbots of Murbach, Reichenau and Ellwangen, the dukes of Bavaria, Brabant, Saxony, Lothringia, Carinthia, the Landgrave of Thuringia, the Margraves of Baden, Meissen and Brandenburg and many, many more even I cannot be bothered to mention.  Everybody was there. It was almost a rerun of the great Pentecost assembly Barbarossa had held 50 years earlier.

But this time it was less about chivalric play and display, but about negotiations over the future shape of the empire and the upcoming campaign in Lombardy. The aforementioned reconciliation with the house of Welf took place here. The other great outcome of the event was the Mainzer Landfrieden, another public peace or more likely public truce that we have heard about since the reign of Henry III.

Gone are the days an emperor can simply order peace to be maintained, threatening anyone who were to pursue his demands by force of arms.

Feud is by now endemic in Germany. The logic is the same we talked about when we looked at the constitutions of Melfi. In the absence of a functioning judicial system of redress, society recognised feud as a viable way to resolve conflict. In the kingdom of Sicily, Frederick addressed the issue by establishing a complete system of appellate courts backed by central powers, a set of provisions intended to prevent and de-escalate conflict and a ban on privately held castles.

The idea to introduce the same in the empire was simply inconceivable. In the two great privileges, the one in favour of the bishops from 1220 and the more recent one in favour of the temporal princes, jurisdiction in princely territories had moved permanently from the imperial hands into princely hands. The process of passing laws in the Empire also involved the princes. Formally their role was purely advisory, but in practice any imperial Ukase issued without the bishops, dukes and margraves consent was not worth the parchment it was written on. And surely the princes would never consent to take down their castles. They would love to pass a law that ordered all their own vassals to take own their castles, but that is not something an emperor would be prepared to sign. So, the castles stay, all 20,000 of them. Even passing laws preventing the carrying of weapons or the provision that nobody can get out by saying that “the other guy started it” were seemingly not possible to get through.

But there were still 29 articles all sides could agree on. Some of those repeated the privileges granted in the documents from 1220 and 1232.

The new things were, that any feud had to be formally declared and that there would be a three-day cooling-off period before hostilities could begin. Further that certain acts of violence were prohibited upon sanction of instant imperial ban. These included setting things alight, in particular houses and castles.

And finally that before a feud could be formally declared, the parties have to go before a judge. Historians as I increasingly learn are not lawyers, and hence are keeping stum on what exactly this judge could decide and how a judgement could be enforced. I tried to read the original text but was no wiser. What is clear is that the parties have to get a judge’s decision, but either party is still able to initiate a feud if they do not like the outcome. So it seems the judge acts more as an arbitrator, attempting to diffuse the tension and arrive at a mutually acceptable solution. That is not a judgement as we would regard it today, but it was better than nothing.

In fact the establishment of a permanent imperial judge, even if he was just an arbitrator became the seed of what would later become the imperial courts that operated from 1495 to 1806 helping to maintain peace and order in the empire.

That does not sound very impressive for such an enormous gathering, the creation of a new duchy and a common peace with marginal improvements to the plague of feuds. But the most important purpose of this gathering was not to produce some formal agreement. Its significance lies more in the fact that it was the first opportunity for the princes and the emperor to operate the new constitution of the empire as it had been created by the privilege to the bishops in 1220 and the privilege to the princes in 1232.

We have discussed both before, but just as a recap. In these imperial charters, Frederick had passed most of the imperial rights first to the bishops and then to the other imperial princes. These included things like jurisdiction, the minting of coins, the building of castles, the establishment of tariff borders and posts etc. Any imperial prince would now have the right to exercise royal power within his territory.

The charters of 1220 and 1232 did in the eyes of many historians not really grant rights to these princes they did not have before. In all these endless wranglings with the royal authority at least since Henry IV’s forced trip to Canossa, the princes have continuously squeezed more and more concessions from the emperors. The civil wars after the death of Henry VI may have accelerated the process, but the direction had been set long before.

But importantly until 1220 and 1232, all the transfers of rights had been bilateral. I.e., every single right had been granted to an individual prince in an individual negotiation. Each prince would hence see his rights and privileges as the result of his own cunning or the dexterity of his ancestors.

The privileges of 1220 and 1232 were granted not to each individual prince, but to the bishops and to the temporal princes as a group. It formally created a distinction between imperial princes and mediated vassals. All imperial princes, irrespective whether they were bishops, abbots, dukes, landgraves, margraves or counts, all shared the same rank. They now exercised these rights not on the basis of some bilateral agreement, but because they were imperial princes. If you are an imperial prince you can for instance mint coins, if you are not, you cannot, unless the emperor or an imperial prince grants you the right. For instance the just created duke of Brunswick had exactly the same rights in his territory as the duke of Bavaria whose family had patiently gather them for over 200 years.

The definition of an imperial prince was that an individual had received a princely fief immediately from the emperor. That distinguishes them from the mediated nobles, i.e,. aristocrats who had received their fief from a territorial lord or even sometimes had no fief at all, just their own allodial, i.e., private lands.

This clarification of the rank of imperial prince had an immediate positive effect on the coherence of the empire. The princes feel reassured that their rights would not be taken away by a more assertive emperor. Because they are based on rank, the rights can only be removed by removing them from everyone of princely rank. Hence in any imperial attempt to roll back time, the princes would stand together.

It also meant that the princes were now integrated into the imperial project. The concept of the Honour of the Empire, that each prince was called upon to uphold, dates back to Barbarossa. Now it gains even more traction. The princes are the pillars of the empire, they have an obligation to support the emperor and provide the Reichsdienst, the service to the empire..

I have often wondered why in periods of almost completely diminished royal authority, say in the late 13th century none of the larger territories, say Bavaria, Austria, Saxony or Bohemia decided to throw off the yoke of imperial oversight. I doubt it was purely for reasons of language or cultural affinity. That for example did not stop the Swiss.

The princes, even the biggest ones, had seen some compelling benefits in this coordination mechanism where they were integrated in the decision-making process at the top level whilst free to act as they wished within their territory. 19th century historians often criticised Frederick’s charters of 1220 and 1232 as the nail in the coffin of any hope of early statehood for Germany. I would agree that these decisions cemented a development already under way that may, just may have been reversed. And I am convinced the territorialisation of Germany resulted in a significant slowing down of economic development. But we should not overlook the fact that the empire held together for another 571 years using broadly this framework.

Peter Wilson, Olaf B. Rader and others draw a parallel to Magna Carta which was granted around the same time. Like in Frederick’s privileges, the king of England is passing some fundamental royal rights to his nobles. The difference is though that in England the rights go to parliament, an institution the membership of which can change. That has allowed for a gradual development where through a change in the composition of the membership of parliament and the transfer of more rights to this institution, you could ultimately arrive at democracy.

In Germany the royal rights transferred not to an institution, but to individuals based on rank. These individuals change over time, in case of bishops through the regular election of new holders of the post and in case of the temporal princes through inheritance, elevation and division. But that is not the same as passing them on to an institution.

At least not yet. By 1495 the participation of princes and other holders of I,perils immediacy became instutiinalised in the Reichstag of the Holy Roman Empire. But the Reichstag despite over 300 years of existence did not become the nucleus of a democratic Germany. I have my views about why and how that happened, but if I have learned one thing over the last 82 episodes, it is to keep my mouth shut until I have properly researched the topic.

And as we are talking about mouth shut, these last episodes were a bit too long for what I promised. And I do not want to put out another 35 minute one. Hence, I will skip the bit about the reburial of Saint Elisabeth of Hungary or as the Germans call her Saint Elisabeth of Thuringia. It would have shone a light on one of the very, very few saints I do have genuine regard for, but ultimately, she did not have a major impact on history, as gentle, caring people rarely do. I will produce a Patreon episode about her, so if you still want to hear more, about Elisabeth and the much less caring and much less gentle Konrad von Marburg, just go over to Patreon, support the show and take a listen.

Otherwise, next week we will take a look at some of the most fascinating aspects of Frederick II, outside his political life. We will talk architecture, poetry, science and his true passion, the arte de venandi con avibus, the art of hunting with birds. I hope it will be a nice breather before the sound of clashing horses and ring of swords on armour dominate the rest of this season of the History of the Germans Podcast.

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