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$Title{History Of Europe During The Middle Ages
Part III}
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$Author{Hallam, Henry}
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$Subject{footnote
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Title:       History Of Europe During The Middle Ages
Book:        Book V: History Of Germany To The Diet Of Worms In 1495
Author:      Hallam, Henry

Part III

     The period between Rodolph and Frederic III. is distinguished by no
circumstance so interesting as the prosperous state of the free imperial
cities, which had attained their maturity about the commencement of that
interval.  We find the cities of Germany, in the tenth century, divided into
such as depended immediately upon the empire, which were usually governed by
their bishop as imperial vicar, and such as were included in the territories
of the dukes and counts. ^b Some of the former, lying principally upon the
Rhine and in Franconia, acquired a certain degree of importance before the
expiration of the eleventh century.  Worms and Cologne manifested a zealous
attachment to Henry IV., whom they supported in despite of their bishops. ^c
His son Henry V. granted privileges of enfranchisement to the inferior
townsmen or artisans, who had hitherto been distinguished from the upper class
of freemen, and particularly relieved them from oppressive usages, which
either gave the whole of their movable goods to the lord upon their decease,
or at least enabled him to seize the best chattel as his heriot. ^d He took
away the temporal authority of the bishop, at least in several instances, and
restored the cities to a more immediate dependence upon the empire.  The
citizens were classed in companies, according to their several occupations; an
institution which was speedily adopted in other commercial countries.  It does
not appear that any German city had obtained, under this emperor, those
privileges of choosing its own magistrates, which were conceded about the same
time, in a few instances, to those of France.  Gradually, however, they began
to elect councils of citizens, as a sort of senate and magistracy. ^e This
innovation might perhaps take place as early as the reign of Frederic I.; ^f
at least it was fully established in that of his grandson.  They were at first
only assistants to the imperial or episcopal bailiff, who probably continued
to administer criminal justice.  But in the thirteenth century the citizens,
grown richer and stronger, either purchased the jurisdiction, or usurped it
through the lord's neglect, or drove out the bailiff by force. ^g The great
revolution in Franconia and Suabia occasioned by the fall of the Hohenstauffen
family completed the victory of the cities.  Those which had depended upon
mediate lords became immediately connected with the empire; and with the
empire in its state of feebleness, when an occasional present of money would
easily induce its chief to acquiesce in any claims of immunity which the
citizens might prefer.

[Footnote b: Pfeffel, p. 187.  The Othos adopted the same policy in Germany
which they had introduced in Italy,conferring the temporal government of
cities upon the bishops; probably as a counterbalance to the lay aristocracy.
Putter, p. 136; Struvius, p. 252.]

[Footnote c: Schmidt, t. iii. p. 239.]

[Footnote d: Ibid., p. 242; Pfeffel, p. 293; Dumont, Corps Diplomatique, t. i.
p. 64.]

[Footnote e: Schmidt, p. 245.]

[Footnote f: In the charter granted by Frederic I. to Spire in 1182,
confirming and enlarging that of Henry V., though no express mention is made
of any municipal jurisdiction, yet it seems implied in the following words:
Causam in civitate jam lite contestatam non episcopus aut alia potestas extra
civitatem determinari compellet.  Dumont, p. 108.]

[Footnote g: Schmidt, t. iv. p. 96; Pfeffel, p. 441.]

     It was a natural consequence of the importance which the free citizens
had reached, and of their immediacy, that they were admitted to a place in the
diets, or general meetings of the confederacy.  They were tacitly acknowledged
to be equally sovereign with the electors and princes.  No proof exists of any
law by which they were adopted into the diet.  We find it said that Rodolph of
Hapsburg, in 1291, renewed his oath with the princes, lords, and cities.
Under the emperor Henry VII. there is unequivocal mention of the three orders
composing the diet; electors, princes, and deputies from cities. ^h And in
1344 they appear as a third distinct college in the diet of Frankfort. ^i

[Footnote h: Mansit ibi rex sex hebdom adibus cum principibus electoribus et
aliis principibus et civitatum nuntiis, de suo transitu et de praestandis
servitiis in Italian disponendo.  Auctor apud Schmidt, t. vi. p. 31.]

[Footnote i: Pfeffel, p. 552.]

     The inhabitants of these free cities always preserved their respect for
the emperor, and gave him much less vexation than his other subjects. He was
indeed their natural friend.  But the nobility and prelates were their natural
enemies; and the western parts of Germany were the scenes of irreconcilable
warfare between the possessors of fortified castles and the inhabitants of
fortified cities.  Each party was frequently the aggressor. The nobles were
too often mere robbers, who lived upon the plunder of travellers.  But the
citizens were almost equally inattentive to the rights of others.  It was
their policy to offer the privileges of burghership to all strangers.  The
peasantry of feudal lords, flying to a neighboring town, found an asylum
constantly open.  A multitude of aliens, thus seeking as it were sanctuary,
dwelt in the suburbs or liberties, between the city walls and the palisades
which bounded the territory. Hence they were called Pfahlburger, or burgesses
of the palisades; and this encroachment on the rights of the nobility was
positively, but vainly, prohibited by several imperial edicts, especially the
Golden Bull. Another class were the Ausburger, or outburghers, who had been
admitted to privileges of citizenship, though resident at a distance, and
pretended in consequence to be exempted from all dues to their original feudal
superiors.  If a lord resisted so unreasonable a claim, he incurred the danger
of bringing down upon himself the vengeance of the citizens.  These
outburghers are in general classed under the general name of Pfahlburger by
contemporary writers. ^j

[Footnote j: Schmidt, t. iv. p. 98; t. vi. p. 76; Pfeffel, p. 402; Du Cange,
Gloss. v. Pfahlburger, Faubourg is derived from this word.]

     As the towns were conscious of the hatred which the nobility bore towards
them, it was their interest to make a common cause, and render mutual
assistance.  From this necessity of maintaining, by united exertions, their
general liberty, the German cities never suffered the petty jealousies, which
might no doubt exist among them, to ripen into such deadly feuds as sullied
the glory, and ultimately destroyed the freedom, of Lombardy.  They withstood
the bishops and barons by confederacies of their own, framed expressly to
secure their commerce against rapine, or unjust exactions of toll.  More than
sixty cities, with three ecclesiastical electors at their head, formed the
league of the Rhine, in 1255, to repel the inferior nobility, who, having now
become immediate, abused that independence by perpetual robberies. ^k The
Hanseatic Union owes its origin to no other cause, and may be traced perhaps
to rather a higher date.  About the year 1370 a league was formed, which,
though it did not continue so long, seems to have produced more striking
effects in Germany.  The cities of Suabia and the Rhine united themselves in a
strict confederacy against the princes, and especially the families of
Wurtemburg and Bavaria.  It is said that the Emperor Wenceslaus secretly
abetted their projects.  The recent successes of the Swiss, who had now almost
established their republic, inspired their neighbors in the empire with
expectations which the event did not realize; for they were defeated in this
war, and ultimately compelled to relinquish their league.
Counter-associations were formed by the nobles, styled Society of St. George,
St. William, the Lion, or the Panther. ^l

[Footnote k: Struvius, p. 498; Schmidt, t. iv. p. 101; Pfeffel, p. 416.]

[Footnote l: Struvius, p. 649; Pfeffel, p. 586; Schmidt, t. v. p. 10; t. vi.
p. 78.  Putter, p. 293.]

     The spirit of political liberty was not confined to the free immediate
cities.  In all the German principalities a form of limited monarchy
prevailed, reflecting, on a reduced scale, the general constitution of the
empire.  As the emperors shared their legislative sovereignty with the diet,
so all the princes who belonged to that assembly had their own provincial
states, composed of their feudal vassals and of their mediate towns within
their territory.  No tax could be imposed without consent of the states; and,
in some countries, the prince was obliged to occount for the proper
disposition of the money granted. In all matters of importance affecting the
principality, and especially in cases of partition, it was necessary to
consult them; and they sometimes decided between competitors in a disputed
succession, though this indeed more strictly belonged to the emperor.  The
provincial states concurred with the prince in making laws, except such as
were enacted by the general diet.  The city of Wurtzburg, in the fourteenth
century, tells its bishop that, if a lord would make any new ordinance, the
custom is that he must consult the citizens, who have always opposed his
innovating upon the ancient laws without their consent. ^m

[Footnote m: Schmidt, t. vi. p. 8.  Putter, p. 236.]

     The ancient imperial domain, or possessions which belonged to the chief
of the empire as such, had originally been very extensive.  Besides large
estates in every province, the territory upon each bank of the Rhine,
afterwards occupied by the counts palatine and ecclesiastical electors, was,
until the thirteenth century, an exclusive property of the emperor.  This
imperial domain was deemed so adequate to the support of his dignity that it
was usual, if not obligatory, for him to grant away his patrimonial domains
upon his election.  But the necessities of Frederic II., and the long
confusion that ensued upon his death, caused the domain to be almost entirely
dissipated.  Rodolph made some efforts to retrieve it, but too late; and the
poor remains of what had belonged to Charlemagne and Otho were alienated by
Charles IV. ^n This produced a necessary change in that part of the
constitution which deprived an emperor of hereditary possessions.  It was,
however, some time before it took place.  Even Albert I. conferred the duchy
of Austria upon his son, when he was chosen emperor. ^o Louis of Bavaria was
the first who retained his hereditary dominions, and made them his residence.
^p Charles IV. and Wenceslaus lived almost wholly in Bohemia, Sigismund
chiefly in Hungary, Frederic III. in Austria.  This residence in their
hereditary countries, while it seemed rather to lower the imperial dignity,
and to lessen their connection with the general confederacy, gave them
intrinsic power and influence.  If the emperors of the houses of Luxemburg and
Austria were not like the Conrads and Frederics, they were at least very
superior in importance to the Williams and Adolphuses of the thirteenth
century.

[Footnote n: Pfeffel, p. 580.]

[Footnote o: Id. p. 494. Struvius, p. 546.]

[Footnote p: Ibid., p. 611.  In the capitulation of Robert it was expressly
provided that he should retain any escheated fief for the domain, instead of
granting it away, so completely was the public policy of the empire reversed.
Schmidt, t. v. p. 44.]

     The accession of Maximilian nearly coincides with the expedition of
Charles VIII. against Naples; and I should here close the German history of
the middle age, were it not for the great epoch which is made by the diet of
Worms in 1495.  This assembly is celebrated for the establishment of a
perpetual public peace, and of a paramount court of justice, the Imperial
Chamber.

     The same causes which produced continual hostilities among the French
nobility were not likely to operate less powerfully on the Germans, equally
warlike with their neighbors, and rather less civilized.  But while the
imperial government was still vigorous, they were kept under some restraint.
We find Henry III., the most powerful of the Franconian emperors, forbidding
all private defiances, and establishing solemnly a general peace. ^q After his
time the natural tendency of manners overpowered all attempts to coerce it,
and private war raged without limits in the empire.  Frederic I. endeavored to
repress it by a regulation which admitted its legality.  This was the law of
defiance (jus diffidationis), which required a solemn declaration of war, and
three days' notice, before the commencement of hostile measures.  All persons
contravening this provision were deemed robbers and not legitimate enemies. ^r
Frederic II. carried the restraint further, and limited the right of
self-redress to cases where justice could not be obtained. Unfortunately there
was, in later times, no sufficient provision for rendering justice.  The
German empire indeed had now assumed so peculiar a character, and the mass of
states which composed it were in so many respects sovereign within their own
territories, that wars, unless in themselves unjust, could not be made a
subject of reproach against them, nor considered, strictly speaking, as
private.  It was certainly most desirable to put an end to them by common
agreement, and by the only means that could render war unnecessary, the
establishment of a supreme jurisdiction.  War indeed, legally undertaken, was
not the only nor the severest grievance.  A very large proportion of the rural
nobility lived by robbery. ^s Their castles, as the ruins still bear witness,
were erected upon inaccessible hills, and in defiles that command the public
road.  An archbishop of Cologne having built a fortress of this kind, the
governor inquired how he was to maintain himself, no revenue having been
assigned for that purpose: the prelate only desired him to mark that the
castle was situated near the junction of four roads. ^t As commerce increased,
and the example of French and Italian civilization rendered the Germans more
sensible to their own rudeness, the preservation of public peace was loudly
demanded.  Every diet under Frederic III. professed to occupy itself with the
two great objects of domestic reformation, peace and law.  Temporary
cessations, during which all private hostility was illegal, were sometimes
enacted; and, if observed, which may well be doubted, might contribute to
accustom men to habits of greater tranquillity.  The leagues of the cities
were probably more efficacious checks upon the disturbers of order.  In 1486 a
ten years' peace was proclaimed, and before the expiration of this period the
perpetual abolition of the right of defiance was happily accomplished in the
diet of Worms. ^u

[Footnote q: Pfeffel, p. 212.]

[Footnote r: Schmidt, t. iv. p. 108, et infra; Pfeffel, p. 340; Putter, p.
205.]

[Footnote s: Germani atque Alemanni, quibus census patrimonii ad victum
suppetit, et hos qui procul urbibus, aut qui castellis et oppidulis
dominantur, quorum magna pars latrocinio detitur, nobiles censent.  Pet. de
Andlo, apud Schmidt, t. v. p. 490.]

[Footnote t: Quem cum officiatus suus interrogans, de quo castrum deberet
retinere, cum annuis careret reditibus, dicitur respondisse; Quatuor viae sunt
trans castrum situatae.  Auctor apud Schmidt, p. 492.]

[Footnote u: Schmidt, t. iv. p. 116; t. v. pp. 338, 371; t. vi. p. 34; Putter,
pp. 292, 348.]

     These wars, incessantly waged by the states of Germany, seldom ended in
conquest.  Very few princely houses of the middle ages were aggrandized by
such means.  That small and independent nobility, the counts and knights of
the empire whom the revolutions of our own age have annihilated, stood through
the storms of centuries with little diminution of their numbers.  An incursion
into the enemy's territory, a pitched battle, a siege, a treaty, are the
general circumstances of the minor wars of the middle ages, as far as they
appear in history.  Before the invention of artillery, a strongly fortified
castle or walled city, was hardly reduced except by famine, which a besieging
army, wasting improvidently its means of subsistence, was full as likely to
feel.  That invention altered the condition of society, and introduced an
inequality of forces, that rendered war more inevitably ruinous to the
inferior party.  Its first and most beneficial effect was to bring the
plundering class of the nobility into control; their castles were more easily
taken, and it became their interest to deserve the protection of law.  A few
of these continued to follow their old profession after the diet of Worms; but
they were soon overpowered by the more efficient police established under
Maximilian.

     The next object of the diet was to provide an effectual remedy for
private wrongs which might supersede all pretence for taking up arms.  The
administration of justice had always been a high prerogative as well as
bounden duty of the emperors.  It was exercised originally by themselves in
person, or by the count palatine, the judge who always attended their court.
In the provinces of Germany the dukes were intrusted with this duty; but, in
order to control their influence, Otho the Great appointed provincial counts
palatine, whose jurisdiction was in some respects exclusive of that still
possessed by the dukes.  As the latter became more independent of the empire,
the provincial counts palatine lost the importance of their office, though
their name may be traced to the twelfth and thirteenth centuries. ^v The
ordinary administration of justice by the emperors went into disuse; in cases
where states of the empire were concerned, it appertained to the diet, or to a
special court of princes. The first attempt to re-establish an imperial
tribunal was made by Frederic II. in a diet held at Mentz in 1235.  A judge of
the court was appointed to sit daily, with certain assessors, half nobles,
half lawyers, and with jurisdiction over all causes where princes of the
empire were not concerned. ^w Rodolph of Hapsburg endeavored to give efficacy
to this judicature; but after his reign it underwent the fate of all those
parts of the Germanic constitution which maintained the prerogatives of the
emperors.  Sigismund endeavored to revive this tribunal; but as he did not
render it permanent, nor fix the place of its sittings, it produced little
other good than as it excited an earnest anxiety for a regular system. This
system, delayed throughout the reign of Frederic III., was reserved for the
first diet of his son. ^x

[Footnote v: Pfeffel, p. 180.]

[Footnote w: Idem, p. 386; Schmidt, t. iv. p. 56.]

[Footnote x: Pfeffel, t. ii. p. 66.]

     The Imperial Chamber, such was the name of the new tribunal, consisted,
at its original institution, of a chief judge, who was to be chosen among the
princes or counts, and of sixteen assessors, partly of noble or equestrian
rank, partly professors of law.  They were named by the emperor with the
approbation of the diet.  The functions of the Imperial Chamber were chiefly
the two following.  They exercised an appellant jurisdiction over causes that
had been decided by the tribunals established in states of the empire.  But
their jurisdiction in private causes was merely appellant.  According to the
original law of Germany, no man could be sued except in the nation or province
to which he belonged. The early emperors travelled from one part of their
dominions to another, in order to render justice consistently with this
fundamental privilege. When the Luxemburg emperors fixed their residence in
Bohemia, the jurisdiction of the imperial court in the first instance would
have ceased of itself by the operation of this ancient rule.  It was not,
however, strictly complied with; and it is said that the emperors had a
concurrent jurisdiction with the provincial tribunals even in private causes.
They divested themselves, nevertheless, of this right by granting privileges
de non evocando; so that no subject of a state which enjoyed such a privilege
could be summoned into the imperial court.  All the electors possessed this
exemption by the terms of the Golden Bull; and it was especially granted to
the burgraves of Nuremberg, and some other princes.  This matter was finally
settled at the diet of Worms; and the Imperial Chamber was positively
restricted from taking cognizance of any causes in the first instance, even
where a state of the empire was one of the parties. It was enacted, to obviate
the denial of justice that appeared likely to result from the regulation in
the latter case, that every elector and prince should establish a tribunal in
his own dominions, where suits against himself might be entertained. ^y

[Footnote y: Schmidt, t. v. p. 373; Putter, p. 372.]

     The second part of the chamber's jurisdiction related to disputes between
two states of the empire.  But these two could only come before it by way of
appeal.  During the period of anarchy which preceded the establishment of its
jurisdiction, a custom was introduced, in order to prevent the constant
recurrence of hostilities, of referring the quarrels of states to certain
arbitrators, called Austregues, chosen among states of the same rank.  This
conventional reference became so popular that the princes would not consent to
abandon it on the institution of the Imperial Chamber; but, on the contrary,
it was changed into an invariable and universal law, that all disputes between
different states must, in the first instance, be submitted to the arbitration
of Austregues. ^z

[Footnote z: Ibid., p. 361; Pfeffel, p. 453.]

     The sentences of the chamber would have been very idly pronounced, if
means had not been devised to carry them into execution.  In earlier times the
want of coercive process had been more felt than that of actual jurisdiction.
For a few years after the establishment of the chamber this deficiency was not
supplied.  But in 1501 an institution, originally planned under Wenceslaus,
and attempted by Albert II., was carried into effect.  The empire, with the
exception of the electorates and the Austrian dominions, was divided into six
circles; each of which had its council of states, its director whose province
it was to convoke them, and its military force to compel obedience.  In 1512
four more circles were added, comprehending those states which had been
excluded in the first division.  It was the business of the police of the
circles to enforce the execution of sentences pronounced by the Imperial
Chamber against refractory states of the empire. ^a

[Footnote a: Putter, p. 355, t. ii. p. 100.]

     As the judges of the Imperial Chamber were appointed with the consent of
the diet, and held their sittings in a free imperial city, its establishment
seemed rather to encroach on the ancient prerogatives of the emperors.
Maximilian expressly reserved these in consenting to the new tribunal.  And,
in order to revive them, he soon afterwards instituted an Aulic Council at
Vienna, composed of judges appointed by himself, and under the political
control of the Austrian government.  Though some German patriots regarded this
tribunal with jealousy, it continued until the dissolution of the empire.  The
Aulic Council had, in all cases, a concurrent jurisdiction with the Imperial
Chamber; an exclusive one in feudal and some other causes.  But it was equally
confined to cases of appeal; and these, by multiplied privileges de non
appellando, granted to the electoral and superior princely houses, were
gradually reduced into moderate compass. ^b

[Footnote b: Ibid., p. 357; Pfeffel, p. 102.]

     The Germanic constitution may be reckoned complete, as to all its
essential characteristics, in the reign of Maximilian.  In later times, and
especially by the treaty of Westphalia, it underwent several modifications.
Whatever might be its defects, and many of them seem to have been susceptible
of reformation without destroying the system of government, it had one
invaluable excellence: it protected the rights of the weaker against the
stronger powers.  The law of nations was first taught in Germany, and grew out
of the public law of the empire.  To narrow, as far as possible, the rights of
war and of conquest, was a natural principle of those who belonged to petty
states, and had nothing to tempt them in ambition.  No revolution of our own
eventful age, except the fall of the ancient French system of government, has
been so extensive, or so likely to produce important consequences, as the
spontaneous dissolution of the German empire.  Whether the new confederacy
that has been substituted for that venerable constitution will be equally
favorable to peace, justice, and liberty, is among the most interesting and
difficult problems that can occupy a philosophical observe. ^c.

[Footnote c: The first edition of this work was published early in 1818.]

     At the accession of Conrad I. Germany had by no means reached its present
extent on the eastern frontier.  Henry the Fowler and the Othos made great
acquisitions upon that side.  But tribes of Sclavonian origin, generally
called Venedic, or less properly, Vandal, occupied the northern coast from the
Elbe to the Vistula.  These were independent, and formidable both to the kings
of Denmark and princes of Germany, till, in the reign of Frederic Barbarossa,
two of the latter, Henry the Lion, Duke of Saxony, and Albert the Bear,
Margrave of Brandenburg, subdued Mecklenburg and Pomerania, which afterwards
became duchies of the empire. Bohemia was undoubtedly subject, in a feudal
sense, to Frederic I. and his successors; though its connection with Germany
was always slight.  The emperors sometimes assumed a sovereignty over Denmark,
Hungary, and Poland.  But what they gained upon this quarter was compensated
by the gradual separation of the Netherlands from their dominion, and by the
still more complete loss of the kingdom of Arles.  The house of Burgundy
possessed most part of the former, and paid as little regard as possible to
the imperial supremacy; though the German diets in the reign of Maximilian
still continued to treat the Netherlands as equally subject to their lawful
control with the states on the right bank of the Rhine.  But the provinces
between the Rhone and the Alps were absolutely separated; Switzerland had
completely succeeded in establishing her own independence; and the Kings of
France no longer sought even the ceremony of an imperial investiture for
Dauphine and Provence.

     Bohemia, which received the Christian faith in the tenth century, was
elevated to the rank of a kingdom near the end of the twelfth.  The dukes and
kings of Bohemia were feudally dependent upon the emperors, from whom they
received investiture.  They possessed, in return, a suffrage among the seven
electors, and held one of the great offices in the imperial court.  But
separated by a rampart of mountains, by a difference of origin and language,
and perhaps by national prejudices from Germany, the Bohemians withdrew as far
as possible from the general politics of the confederacy.  The kings obtained
dispensations from attending the diets of the empire, nor were they able to
reinstate themselves in the privilege thus abandoned till the beginning of the
last century. ^d The government of this kingdom, in a very slight degree
partaking of the feudal character, bore rather a resemblance to that of
Poland; but the nobility were divided into two classes, the baronial and the
equestrian, and the burghers formed a third state in the national diet. ^e For
the peasantry, they were in a condition of servitude, or predial villeinage.
The royal authority was restrained by a coronation oath, by a permanent
senate, and by frequent assemblies of the diet, where a numerous and armed
nobility appeared to secure their liberties by law or force. ^f The scepter
passed, in ordinary times, to the nearest heir of the royal blood; but the
right of election was only suspended, and no King of Bohemia ventured to boast
of it as his inheritance. ^g This mixture of elective and hereditary monarchy
was common, as we have seen, to most European kingdoms in their original
constitution, though few continued so long to admit the participation of
popular suffrages.

[Footnote d: Pfeffel, t. ii. p. 497.]

[Footnote e: Bona ipsorum tota Bohemia pleraque omnia haereditaria sunt seu
alodialia, perpauca feudalia.  Stransky, Resp. Bohemica, p. 392. Stransky was
a Bohemian Protestant, who fled to Holland after the subversion of the civil
and religious liberties of his country by the fatal battle of Prague in 1621.]

[Footnote f: Dubravius, the Bohemian historian, relates (lib. xviii.) that,
the kingdom having no written laws, Wenceslaus, one of the kings, about the
year 1300 sent for an Italian lawyer to compile a code.  But the nobility
refused to consent to this: aware, probably, of the consequences of letting in
the prerogative doctrines of the civilians.  They opposed, at the same time,
the institution of a university at Prague; which, however, took place
afterwards under Charles IV.]

[Footnote g: Stransky, Resp. Bohem.  Coxe's House of Austria, p. 487.]