Part Three of the Imperial Reform (Reichsreform)
Ep. 225: Imperial Reform 1495 – The Ewige Landfrieden (Public Peace) of 1495 – History of the Germans
Click here to: Listen on Apple Podcast
Click here to: Listen on Spotify
Transcript
Hello and welcome to the History of the Germans: Episode 225 – Der Ewige Landfrieden (the Public Peace) of 1495.
Let me start today’s episode with some outrageous national stereotypes. If an Englishman is disappointed with the way the affairs of state are conducted, he writes a letter to his member of Parliament. A Frenchman in that same situation rents a tractor and dumps manure outside the Palais d’Elysee. A German threatens to file a lawsuit with the constitutional court, the Bundesverfassungsgericht.
Where did the Germans pick up the belief that courts and the law will protect them against government overreach? Sure, 19th and early 20th century judges had on occasion stood up to the Kaiser’s administration and the Grundgesetz, the liberal constitution of 1949, had become a cornerstone of our national identity following the comprehensive loss of moral standing.
But there is also a long strain that goes back to the Holy Roman Empire and the two imperial courts, the Reichskammergericht and the Reichshofrat. These courts have a bad reputation, not only because Johan Wolfgang von Goethe saw it fit to ridicule his former place of work. However, not everyone shared this negative perspective. Many social groups down to mere commoners relied on these independent judges to protect their life and property against rapacious princes.
And with that, back to the show.
I guess you are sitting in your car or on the train listening to this and thinking, how can there be a connection between what you have heard these last 224 episodes about lawlessness and chaos in the Holy Roman Empire and the high status court judgements enjoy in Germany today? I do admit, it is a long shot, but bear with me.
Let’s go back first to the early and high Middle Ages, the Ottonians, Salians and early Hohenstaufen. The emperors of this period saw law and justice as their primary tasks, alongside the protection of the church and the defense of the honor of the empire.
The Laws of the Empire – or Absence Thereof
But what did they mean by law and justice? There was of course no codified law in existence. The closest thing to a law code was the Sachsenspiegel and its variations. But this was a collection of legal customs compiled by a scholar, Eike von Repgow, not a compilation of binding laws. There were other, competing sources of law, the ancient Frankish law codes, specific local traditions, Canon law, aka the law of the church, precedents in the form of previous imperial judgements and charters, some real, some fake.
Roman Law, specifically the Codex Juris of Justinian was added to this mélange in the mid-12th century when scholars in Bologna recovered the original text and Barbarossa re-issued it as the laws of Roncaglia (episode 55).
There was obviously no coherence between these various sources of law, not even a widely accepted hierarchy. Attempts were made both on the territorial and imperial level to reconcile all these into one coherent “law of the land”, but it took until 1794 before Prussia passed the first comprehensive law code, the Preußische Allgemeine Landrecht. Austria followed in 1802 and France with the much more modern Code Napoleon in 1804 that was adopted by several German principalities. I.e., for 98% of the time the empire existed, there was no coherent law, not even on a territorial level.
The purpose of Judgements
So, without a coherent set of laws, how did the courts arrive at their judgements, and why did so many people think these courts were a place to get actual justice?
If you read about legal disputes in the papers, the headline is usually X won or Y had lost, framing the lawcourts as a place of epic battles where victory or defeat are determined by the rhetoric flourish of the advocates and the stern application of the law.
But most people who go to court do not give a jot about the law. They want something and all other routes to compel the other side to concede have been exhausted. Going to court is expensive and the outcome uncertain, or as my law professors used to say, in court and on the High seas, you are in the hand of the gods. Which is why about 70% of cases that go to court end in a settlement. If you take into account that most lawyers advise clients to settle out of court, the percentage of disputes resolved without an actual court decision may well be north of 90%. In other words, a legal system that promotes viable settlements gets you 90% the way to law and order.
And that is what the imperial courts of the medieval emperors were aiming for, viable settlement. Only rarely would they lay down the law. And where they did so, these judgements were underwritten not just by the king, but by all the powerful individuals who had been involved in finding this solution, committing them to uphold the judgement.
The objective was not to discover the accurate legal solution, but to find a compromise that allowed both parties to leave the court with their honor intact. Disagreements could be framed as misunderstandings and the abandoning of position could be described as magnanimity. In the early Middle Ages, no other form of dispute resolution was possible. This was a society built on personal reputation. The political system consisted of personal bonds between vassals and lords, not institutions. A vassal followed a lord because the lord had promised to protect his rights and status. That expectation would be damaged irrevocably, if the lord was subjected to a humiliating defeat in court. His followers would then wonder whether this lord was still able to protect their land and possessions? At which point the lord’s only remaining option was to rebel against the “bad king”, resulting in civil war. That is what happened way back in episode 3, when Otto the definitely not yet great, convicted duke Eberhard of Franconia to the humiliation of having to carry dogs. Eberhard rebelled, causing a civil war that nearly wiped out Otto.
Bottom line, a medieval imperial court was a forum to negotiate a compromise, not a place to determine guilt or ascertain property rights.
The territorial courts
That should have got us 80% of the way, was it not for some major logistical challenges. There was usually only one emperor and he could not be everywhere. As it happened, from the 12th century he was barely anywhere. Moreover, from the 12th century onwards, the operating radius of the emperors had shrunk to the southern parts of the German lands. Large parts of the duchy of Saxony never saw an emperor again for centuries. So, who was supposed to do all that mediating.
In the Carolingian empire, the counts were given the task of adjudicating as representatives of the emperor. But as the role of count had become hereditary, emperors no longer wanted to be held responsible for the decisions of these counts.
This left a vacuum that was gradually filled by the dukes and then the territorial lords. This situation was formally recognized by Frederick II’s privileges for the bishops and princes in the 1230s. Therin the emperor granted the imperial princes the jurisdiction over all the people in their territories, not just their personal servants and vassals.
Based on this privilege the territorial princes established a system of courts, usually split into the lower jurisdiction that focused on civic disputes and minor crimes and misdemeanors and the Blutgerichtsbarkeit, literally the jurisdiction over the blood, which had the right to condemn people to death and use torture to force confessions.
Lower jurisdiction was exercised by the mayor of the village or town, usually in conjunction with jurors chosen amongst the senior members of the community. As the territorial principalities became more vertically integrated, they were divided up into districts, called Ӓmter, where a judge and court would be established either hearing cases directly or to hear appeals against the lower level justice. And there could be a further appeal to the princely court or a senior law court.
The higher criminal jurisdiction, the Blutgerichtsbarkeit was usually exercised by the prince, either as a Hofgericht, a princely court where the lord would preside, or as a Landgericht, staffed with professional judges and jurors.
Though the territorial courts often had the means to implement their judgements by force, they did maintain the older tradition of preferring settlements over judgements. That was in part down to the complexity and contradictory nature of the law, but also because such compromises were better at calming down tensions. Rebellions and uprisings were common throughout the 15th and 16th centuries and could attract the support of jealous neighbours. So princes preferred calm to the strict application of the law.
Similar structures were established in the cities with a lower magistrates court dealing with civil cases and minor misdemeanours and a higher court meeting out more severe punishments.
Appellate Courts and Private Courts
These territorial and city courts brought about a major improvement in law and justice in particular when staffed with professional judges, who kept records and tried to maintain coherence in the application of the law.
But they did have some weaknesses. Territorial laws and customs varied considerably from one place to the other. Behaviours and business practices that were perfectly acceptable in one place could be severely sanctioned in the next. People who stumbled into these idiosyncrasies might refuse to accept the proposed settlements, leaving the case open or potentially escalating.
That was a particular issue for the cities that traded with each other over long distances. Material differences in laws and customs could hamper this trade. That is why many cities, in particular those newly founded in the east, copied existing city laws, Stadtrechte, from so called mother cities. The laws of Magdeburg, Soest and of course Lubeck were wide spread. And to ensure the practical application of these laws remained in synch, complex cases could be brought to the mother city, making for instance City Council of Lubeck the appellate court for many Hanse cities.
Territories increasingly shifted to the use of Roman law and asked universities to opine on complex legal questions. That brought their practices into some at least broad alignment, though differences remained.
Leagues were another co-ordination mechanism acting as a bridge between different status groups. For instance the Swabian Leage maintained its own court system to adjudicate conflict between members which comprised princes, cities and imperial knights. The court could even overturn local magistrates decisions, thereby deepening the integration of their legal frameworks.
Landfrieden attempts until 1495
Therefore the empire wasn’t a lawless free for all before 1495, as has often been claimed. The inhabitants of cities and territories were bound by rules, adhered to commercial law practices and were subject to criminal justice, all administered by increasingly professional lawcourts.
But there was a massive gap in this system of the territorial courts. By definition they had no jurisdiction to adjudicate in conflicts between territories, cities or imperial knights. The framework under which these conflicts were supposed to be resolved was the so-called Landfrieden, the public peace.
When the first Landfrieden was promulgated by Henry IV in 1103, it was already a step backwards. His father, Henry III had forced a great pacification of the empire in 1043, that referred all conflicts to resolution by him and a prohibition of violence. But that has in large parts gone down the swanny during the regency of Agnes of Poitou and the conflict between pope and emperor known as the Investiture Controversy that followed.
The concept of a Landfrieden after 1103 was that all the powerful princes come together and promise to resolve their conflicts through mediation. But crucially, it did not and as we have discussed before actually could not ban feuds altogether. Feuds remained allowed, provided the party declared the feud in the proper manner, sought reconciliation first and did not breach specific rules, like for instance, not to attack royal highways.
After this first Landfrieden of 1103, several more were declared, including ones in 1152, 1158,1179,1186,1235, 1287, 1323, 1383, 1389, 1442, 1467. Having to say the same thing again and again is not a good sign.
The success of these declarations of a public peace depended heavily on the ability of the imperial courts to actually mitigate the conflicts before they descended into feuds. You needed a court that was able to come up with sensible settlement proposals and within a reasonable time frame.
And that was not always the case – hence the regular renewals. During the interregnum and then the long period when the imperial title moved between the Habsburgs, Luxemburgs and Wittelsbachs, emperors simply did not have the time to build up the court infrastructure needed. That meant mediation either did not happen, was ill thought out or came too late. Any of those and blood was be spilled. And once they were going at each other hammer and tongs, it was three times harder to get them back to the negotiation table.
In the 15th century things went properly downhill. Wenceslaus the Lazy, Sigismund and Friedrich III spent most of their time on the eastern edge of the empire dealing with existential threats from Bohemia and Hungary. Adjudication often stalled completely.
As the 15th century continued this gaping hole in the legal system gave room to veritable chaos. Princely warfare became more intense with the development of artillery and the growing size of the armies. Imperial knights whose income from tenants had shrunk following the Black Death, made up for it by conducting feuds on behalf of paying patrons. Even villages resorted to feuds in order to protect their hard won freedoms.
With no mediation process in place, let alone any kind of sanction for breaking the rules of feuding, things went seriously out of control, so seriously that even the imperial princes demanded an end to the madness.
On the positive side, the idea that violence needed to be a legitimate part of the negotiation process had lost credibility.
The right to feud against a “bad” overlord or an unjustified claim from a neighbour was rooted in the concept of vassalage. As mentioned before, a Lord had to keep face if he wanted to hold on to the support of his vassals. And that meant he had the right to rebel if disrespected. If you check out Otto von Northeim’s speech in episode 31 and 100, you can see the line or arguments that justified rebellion. But by the 15th century, feuding was no longer necessary. The power of the territorial princes no longer rested on the oaths of their vassals, but on the institutions, administration and military forces they had established. They could now sustain a negative judgement without losing their status.
That is why in 1467 Friedrich III could issue his Landfrieden that banned all feuding outright as lèse-majesté. That was a major step forward, though this arrangement still remained time limited to 10 years. And it lacked an enforcement mechanism, since the Reichskammergericht he had tasked with providing mediation and – if necessary – order the execution of its judgements, ceased to operate after 1475.
The 1495 Landfrieden brought this sorry saga to an end. It declared that (quote):
“..from this moment on, no person of whatever rank, status, or condition shall make war on others, or rob, declare feud with, invade, or besiege them, or help anyone else to do so in person or through servitors; or violently occupy any castle, town, market, fortress, village, farmstead, or hamlet, or seize them illegally against another’s will, or damage them with fire or in any other way, or assist by word or deed or in any other way support or supply any perpetrators of such deeds, or knowingly harbor, house, feed, or give drink, aid, and comfort to such persons.” (end quote).
The Ewige Landfrieden banned private warfare under all and any circumstances and for ever. It established the state’s monopoly of violence. This, once enforced became another nail in the coffin of the Middle Ages.
Reichskammergericht, Reichshofgericht and Kreise
But as Friedrich III could tell you, the operative word here is “once enforced”. Even if everybody would have been happy to outlaw feuds for ever, and not everybody did, that would not have yielded results. Conflicts between the holders of imperial immediacy did not vanish overnight. The dukes still wanted the cities, the landgraves the bishops’ lands, princes still debased currencies and imperial knights kidnapped merchants.
What made the difference was the establishment of two courts, the Reichskammergericht and the Reichshofrat and another coordination mechanism, the Kreise, the imperial circles.
The Reichskammergericht in its latest incarnation was established at the diet of Worms in August 1495, its judges were appointed on October 31st and it heard its first cases four days later, a sign that at least occasionally, the empire could move swiftly.
The reason it did work, and worked for so long, came down to a number of institutional choices.
As I do not have to explain to our American friends, the composition of the court is almost as important as its remit and procedures.
In case of the Reichskammergericht, the presiding judge, the Kammerrichter, was appointed by the emperor, whilst the judges who shared the decision making, were proposed by the imperial estates. The imperial estates submitted a list from which the incumbent judges chose the new member of the court. The judges, including the presiding judge, swore allegiance to the court, not to the emperor and not to the imperial estates.
Though these appointments did have some influence, in practice, the Reichskammergericht acted independently from the emperor and the imperial princes. It had its own budget, its own administration and chancellery.
The Reichskammergericht was also based away from the Habsburg’s capital, first as an itinerant court, then from 1527 until 1689 in Speyer and after that in Wetzlar.
This degree of independence set it apart from the territorial court that aligned much closer to the increasingly absolutist territorial princes.
Its remit was to adjudicate disputes between the imperial estates and other holders of imperial immediacy and banning anyone who broke the public peace for any reason. And, beyond this role as protector of the public peace, it also acted as the final appellate court above the territorial courts. This latter role was however unevenly distributed across the empire, since the Prince Electors, all the Habsburg lands and several other senior lords had the “ius de non appellando”, a privilege that protected their judgments from being reviewed by the Reichskammergericht. Over time the court was able to chip away at these exemptions, before it gained a much wider remit in 1526, which we will discuss in a minute.
Two years after the Reichstag established the new Reichskammergericht, Maximilian established another court, the Reichshofrat. The Reichhofrat was very much the court of the emperor, as opposed to the Reichskammergericht that was the court of the empire. Its judges were appointed by the emperor and it was based wherever the emperor resided. Its remit was conflicts over the rights and obligations of vassals. In practice this involved mostly matters of inheritance. Typical issues were the succession to fiefs where the incumbent family had died out or the permission to split a fief between multiple heirs.
The two courts did have quite a bit of overlap, since inheritance conflicts could easily tip over into breaches of the public peace. To limit forum shopping, the courts agreed a rule that no case could be brought if it was already pending in front of the other court.
The other Achilles heel of previous Landfrieden arrangements, beyond courts simply shutting down, had been the lack of viable enforcement mechanisms. The way the 1495 reforms addressed that, was by allowing the Reichskammergericht to demand the Reichstag to issue an imperial ban to coerce a reluctant party to adhere to its rulings. That was deemed too slow and complicated and from 1559 the emperor was tasked with issuing the ban on behalf of the Reichskammergericht. The Reichshofrat, as the court of the emperor could issue the imperial ban directly, though there were some limitation to prevent abuse.
Imperial ban was however very sparsely used as a tool. The sanctions associated with it were often going too far. It allowed anyone to kill the banned person without repercussions and his property and fiefs could be confiscated without compensation. The execution of an imperial ban threatened to unsettle the social order, creating a high bar to its application.
The Reichskammergericht – like the medieval imperial courts before – preferred finding viable compromises, rather than bringing down the full force of the law. Where they needed execution, they relied more on the imperial circles. These circles had been instituted in 1512 as a means to co-ordinate on a regional basis. There were initially six circles and later 10, comprising the entire empire except for Bohemia and Switzerland. The Kreise became the closest thing the empire developed in terms of administration. They organised the military forces of the empire, collected the taxes based on the Matrikel system, executed imperial and court orders and maintained the peace in their region. They were headed by a Kreistag, an assembly of the Kreis members. It is here in the Kreistag, where the smaller estates of the empire, the cities, counts and minor princes were engaged. That is where they passed legislation, co-ordinated infrastructure projects and settled their differences. Thanks to the imperial circles, the empire was a lot more coherent in its actions and laws than these maps with 350 tiny statelets suggest. They were so successful that older leagues, like the Swabian league, were ultimately replaced by these imperial circles.
One would assume that the Reichskammergericht would be more popular for claimants than the Reichshofrat. The ofrmer was independent, whilst the other was under the direct control of the emperor. However, the Reichskammergericht found itself often overwhelmed with cases, making its proceedings slow and protracted. Some of the numbers, in particular Goethe’s claim of 10s of thousands of open cases were clearly exaggerated. Sure, there were cases that had been ongoing for a century. But these were often inheritance cases where the purpose was to settle the matter in an amicable way to prevent open hostilities, a scenario where delay can be the prudent choice. The Reichskammergericht regularly cleared its backlog suggesting it could not have been all that bad.
And, if necessary the Reichskammergericht could act very quickly. For instance Commissioners could be sent with injunctions to mobilise the military forces of the Kreise to prevent breaches of the peace.
Nevertheless, the Reichshofrat had a reputation to be quicker and sometimes more effective since its enforcement could rely on the full force of the Habsburg emperor. Moreover, despite its institutional attachment, the Reichshofrat gained a reputation as a defender of smaller imperial vassals against expanding territorial princes.
The court procedures and the witch craze
Both Reichskammergericht and Reichshofrat conducted their cases mainly in writing. Lawyers submitted writs and memoranda summarising their arguments. Before 1495 the courts operated in the fashion of an Anglo-Saxon court, basing its decision only on evidence brought forward by the parties. The Reichskammergericht and the Reichshofrat procedure allowed the courts to task officials with the collection of evidence, including taking witness statements.
This more inquisitive process spread across the legal system of the empire to the territorial courts, which had some painful unintended consequences.
The imperial criminal code of 1532 shifted the responsibility to prove guilt from the accuser to a public prosecutor. Previously an accuser had to bring the evidence for the alleged crime and if he failed to prove his allegation could face severe financial and even criminal recriminations. Once this task has been taken over by a public prosecutor it became a lot less risky and less expensive to report crimes. So far so sensible. The more crimes get reported, the more likely it is that they get prosecuted.
What turned it into a toxic cocktail was the rise in allegations of witchcraft. Witchcraft was a crime and prosecutors were compelled to investigate them. Torture was a broadly acceptable tool in the investigative process. Plus the criminal codes of the time contained scarce protection against arbitrary arrest. One can imagine what then happened. Investigators torture alleged witches who bring up names who in turn get tortured as well, leading to even more arrests until the whole empire is in the grip of a veritable witch craze. Over the course of the 16th and early 17th century territorial courts had 22,500 alleged witches executed.
Neither the Reichskammergericht nor the Reichshofrat had tools to intervene, since criminal law, the “jurisdiction of the blood” had become the exclusive prerogative of the territorial princes. The only grounds for intervention was a breach of procedural rules, which curbed some excesses, but failed to prevent the ultimate outcome. A very sad topic we will probably have to get back to at some stage.
The broader remit after 1526
Against this darkness stands a more positive and more lasting impact of the system of imperial justice. In 1526 the remit of the Reichskammergericht was expanded. It allowed ordinary citizens to challenge their prince if he or she overstepped his legitimate powers, for instance unlawful exactions, arbitrary violence or the violation of traditional rights and protections.
This is a fairly rare institutional set-up in continental europe before the 19th century. By submitting themselves to the court’s verdicts, the princes gave up a big chunk of their autonomy. For instance the duke of Hohenzollern-Hechingen had to return the hunting guns he had taken off his peasants and reverse enclosures. A count found himself imprisoned for 10 years for having forged his subjects signatures on loan agreements. Duke Karl Leopold of Mecklenburg was deposed for putting excessive taxes on his subjects and trying to suppress his ducal assembly.
Why did German princes accept that? The decision came in the immediate aftermath of the peasant’s revolt of 1525, the largest uprising in Europe before the French revolution. It had become clear to the imperial estates, in particular the smaller ones, that they needed a way to ease social tensions. Populations who know that there is a way to seek legal redress for perceived infringements are less likely to risk life, limb and property on the barricades. It did not work perfectly and there were several rebellions and uprisings in the 17th and 18th century. But they were limited in sale and severity, compared to similar occurrences in Bohemia and Hungary where there was no room for redress.
Here is what Peter Wilson said about the consequences: quote: This process had been labelled ‘juridification’ and involved a fundamental change in behaviour at all social levels. Lords had previously used violence to assert authority and status. Feuding had been criminalised in 1495 and now repression was likely to be condemned in the courts”. The courts provided a platform for princes, burghers, peasants even the Jewish minority to hash out their differences based on the understanding that each side could call on certain rights and protections.
Other than in France, common people in the empire did not feel utterly powerless before the institutions of their princes or the emperors. Sure, a court case was hard to mount and ruinously expensive, but it was possible and it had a chance of success.
That in part explains the lack of enthusiasm for the French revolution amongst the broader population in Germany. Like in Britain, Germans were quickly turned off by the excesses of Jacobin rule and they simply did not see themselves being as oppressed by their governments as the French. That did change once the empire and its legal safeguards against princely overreach had gone, but it was there in 1789.
The other lasting impact was that calling a court for help became the Germans’ reflexive reaction to injustice. Germans, or at least Germans of my generation, see their country first and foremost as a Rechtsstaat, a state under the law.
Let me end with a quote I found in Peter Wilson, by a Habsburg Official, Joseph Haas bemoaning the dissolution of the Reichskammergericht and the Reichshofrat in 1806 (quote):
“The judicial power [which] was until now the shining jewel of our constitution. Two Imperial Courts, whose councillors were appointed with great care and were free of external influence, competed with each other in the impartial administration of justice, and gave even the lowest subject right against the most powerful prince”. Now that these are dissolved, he goes on to say: “there is no doubt that canals will be dug, roads laid, avenues and parks, theatres and pools created, cities illuminated, and we will shine and starve. The only robbers threatening the subjects’ property will be the tax collector and the French and German Soldiers” (end quote).
And this brings our mini series about the Imperial reform of 1495 to its conclusion. Next week I will be away in Naples because I cannot bear the incessant rain here in London any longer. But I leave you a particular present. I did an interview with professor Duncan Hardy who I have mentioned several times before and who is a true expert in the empire of the 15th and 16th century. I am sure you will find that as enlightening as I did.
And in the meantime, spare a thought for your hard toiling podcaster, who has no Reichskammergericht to call upon for fair wages, but lives in hope of the generosity of his fellow history nerds. If you want to be part of the exclusive club that luxuriates in the soft glow of your fellow listeners gratitude, go to historyofthegermans.com/support and click on any one of the options.
