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Max Planck Encyclopedia of Public International Law [MPEPIL]

Holy Roman Empire

Diana Zacharias

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 21 May 2019

Ancient Times to 1648 — 1648-1815

Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.

A.  Notion and Idea

Holy Roman Empire (‘Empire’) was a name given to the political entity that stood under the reign of the German emperors in the tradition of the ancient Roman Empire and lasted from the Middle Ages to 6 August 1806, when Emperor Francis II submitted to the pressure of Napoleon Bonaparte, resigned the imperial crown, and declared that the bond which connected him with the State body of the German Empire was dissolved (History of International Law, Ancient Times to 1648; History of International Law, 1648 to 1815). While the end of the Holy Roman Empire—that, after the foundation of the German Empire in 1871 was also called the Old Empire—can, thus, be dated exactly, its beginnings are not that clear. Although attempts had been made to identify them with a certain historical event, eg the coronation of Charlemagne as imperator augustus by Pope Leo III in 800, the Treaty of Verdun in 843 in which Charlemagne’s grandsons partitioned inter se the Frankish Empire, the ascension of the throne by Arnulf of Carinthia in 887, the elevation of Conrad I as king in 911, the election of Henry I as king in 919, or the coronation of Otto the Great as emperor by Pope John XII in 962, common opinion today holds that the Holy Roman Empire was born over a longer period (H Conrad Deutsche Rechtsgeschichte I [2nd ed Müller Karlsruhe 1962] 176; D Willoweit Deutsche Verfassungsgeschichte [5th ed Beck Munich 2005] 68) or as part of a progressive process (ibid).

The terminology for the Empire, as developed in different epochs, expressed the spiritual and political way in which it saw itself: calling the Empire Roman, as did manuscripts since 1034 speaking about an imperium romanum, pointed to the claim made at first by Charlemagne and later in particular by the Ottonian Emperors to be continuing the lost—Western—Roman Empire by means of translation (translatio imperii). The translation of the reign from the Romans to the Franks or rather the Germans was a fiction, based on the symbolical act of the coronation by the Pope as head of the Roman Church that took place until 1508; it was used as an argument for the universal quality of the Empire: the medieval German kings held the patronage over all Christianity and their reign was superior to all other kingdoms. Attributing the Empire since 1157 and, thus, the time of Emperor Frederick I—Barbarossa—and the crusades with a holy nature (sacrum imperium) indicated the Empire’s claim to have the same order and rank as the likewise holy Roman Church (sancta ecclesia) within the medieval uniform world moulded by Christianity (unum corpus christianorum); that claim, by the way, led to much strife between the Empire and the papacy. From 1254 the two characterizations ‘Roman’ and ‘holy’ were used in combination and the Empire was named the Holy Roman Empire (sacrum imperium romanum). The final version, Holy Roman Empire of the German Nation (Heiliges Römisches Reich deutscher Nation), appeared, with several variations, in imperial acts after the Frankfurt Land Peace of Frederick III in 1486. It is disputed in historical science whether that addition must be interpreted as a restriction or as a widening (E Schubert König und Reich [Vandenhoeck & Ruprecht Göttingen 1979] 226). Anyway, even after the loss of influence over Italy and Burgundy as non-German areas the Empire was understood as a universal structure of order. In conflict with that concept were two central developments with their starting point in the early modern era: on the one hand, the medieval idea of religious unity became definitively obsolete with the confessional division in the course of Reformation in the 16th century, while, on the other hand, the rise of national States ended the idea of political unity on which the medieval universalism was founded.

In consequence, the disintegration of the Holy Roman Empire had been terminologically predetermined at least since the 18th century. Voltaire’s remark that it was neither holy, nor Roman, nor an empire may be the most prominent and literarily trenchant example. In public legal scholarship, for instance, Johann Jacob Moser held that the attribute holy was superfluous, and legal and political practice, tacitly eliminating the name Roman, spoke only about the German Empire (Teutsches Reich; Empire Germanique). The central legal texts of the last decade before the end of the Empire did the same, in particular the Separate Peace Treaty of Basel between France and Prussia (1795), the Peace Treaty of Lunéville (1801), the Final Decision of the Imperial Deputation (Reichsdeputationshauptschluss, 1803), and, concluding this development, the Confederation of the Rhine Act (Rheinbundakte) and, as mentioned, the disclaimer of Francis II (1806; Peace Treaties; see also Rhine River).

B.  Constitutional Order

The constitutional order of the Holy Roman Empire, understood as its legal organizational structure, can be read into sources of various epochs and subjects; there is no overall codification but rather some so-called—imperial—basic laws; amongst them, and maybe most important, the Golden Bull of 1356. The constitution was, roughly speaking, moulded by two elementary principles which remained until the end of the Empire: the character of the Empire as an elective monarchy and the strong position of certain outstanding—imperial—princes. Thus, the Empire chose a way that was fundamentally different to France and England. These States, in the 12th century, moved from an election to a succession of kings, which supported the evolution of central or centralistic structures of power; these structures, for their part, were an essential precondition for the development of national States, while Germany became a nation much later only in the course of the 19th century.

In the High and Late Middle Ages, the emperor, who must first have become king, as head of the Holy Roman Empire had, in principle, extensive powers of rulership. Hence, he had the disposal of imperial goods. He held the highest feudal power which made it possible to create a mutual person-related organization of rulership between the emperor and the vassals, which was predominantly of a nobility law nature. Furthermore, the emperor could dispose of a number of privileges, the so-called iura regalia or iura publica; in times without imperial legislation these proved to be important instruments for the execution of imperial power. The medieval church reign must also be mentioned as a part of the imperial power, not least with regard to the special position of the higher clergy in the Holy Roman Empire in the Ottonian church system. As recipients of secular rights, from the Concordat of Worms in 1122 the members of that group were integrated into the feudal rulership of the emperor, although he was not totally free in the choice of the vassals (Concordats). Since the 12th century, the emperor also had the peace power, the execution of which was connected with the limitation of the right to feud. Originally, the right to legislate, in his own competence, general and abstract legal norms for the Empire did not belong to the imperial power. According to the medieval view, the law was based on custom and its recognition by the legal community. But with the emergence of the idea of a renovatio imperii and the introduction of Roman law in the Staufen period, the idea gained acceptance that the emperor could not only interpret the established law authentically but also create new law. From the middle of the 13th century, that idea culminated in the claim by the emperor to be the real source of law; and, at the end of the High and Late Middle Ages, the legislative power was undisputedly regarded as an integral part of the imperial absolute power (plenitudo potestatis imperialis). Finally, the emperor was the holder of the adjudicative power in the Empire. The legitimate execution of this power by third persons was dependent on imperial fiefs; thus, in any case, the supervisory authority remained in the hands of the emperor.

The legal basis for the imperial powers was the law generated by habitual practice (consuetudo). That legal habit was essentially formulated and recorded by the imperial rulers before it was made the subject of the emperor’s legislative power. Examples of written legal documentation include, inter alia, records concerning the issuing of imperial goods or feudal lending, the feudal acts of the 12th and 13th centuries, the disposals of imperial privileges, imperial or regional land peaces or land peace treaties, and, from the 14th century, the acts of imperial legislation, in particular the imperial election acts. Moreover, one should not forget the numerous instructions and decisions of the royal and later imperial court that, from the beginning of the 13th century, showed signs of an institutionalized execution of adjudicative power.

In contrast to the royal or imperial reign, the rulership of the princes was neither uniform, nor vested with extensive power. The reign of the prince-bishops was based on election and not on heritage. Because of the ecclesiastical restraint on alienation, the bishops had only limited possibilities to transfer goods and privileges. Moreover, the bishop’s town was quite early made the starting point for a residence as centre of rulership. The reign of the secular princes who, in the 14th century, had been raised to that status and, thus, stepped into the political and legal position of the count and free noble families, was composed of various rights, eg certain adjudicative rights, bailiwick rights, regalia that had been transferred for execution by a privilege, allodial rights, and powers based on the feudal right. The princes and dukes did not have a specific peace power, unless an imperial or a regional land peace treaty granted them such a power in a particular case. They also did not have an extensive rulership over the church or over ecclesiastical institutions, except within the framework of bailiwick rights for cloisters or rights over parishes that resulted from their own ecclesiastical regime. Whether the princes had a right to legislate general legal norms for their territories was disputed amongst contemporaries. While the medieval legists proclaimed that the prince was emperor in his own territory, an imperial judgment of the 13th century stipulated that no land lord (dominus terrae), nor any other person was allowed to determine acts (constitutiones) or new rights, unless the consent of the lower and the higher ones of the land (meliores ac maiores terrae) had been reached. Anyway, the territorial legislation which appeared hesitantly from the 14th century was concerned not to disturb existing rights, namely those that had been confirmed or secured by privileges. When exercising the individual rights of rulership, the prince-bishops, secular princes, and counts had to stay within the legal framework determined by the royal or imperial reign; the princes’ rights were derived from that reign, not autochthonous. Furthermore, the rulership of the princes and counts was a personal one without territorial unity.

An integral part of the legal structure of the royal or imperial reign in the Holy Roman Empire during the High and Late Middle Ages was the participation of the members of the imperial nobility, namely the imperial princes (principes imperii), who were connected with the king or emperor in multiple ways, not least by means of the feudal relationship. Hence, contemporaries already described the Empire as a body with the emperor as the head and the princes, in particular the electors, as the limbs. The first signs of the collaboration of the princes can be seen in the High Middle Ages in the context of the issuing of imperial documents, where the princes’ consent or formal acknowledgment was regarded as helpful for imposing certain imperial measures. From the 14th century, the electors gave declarations of consent to royal disposals of imperial goods, which were not constitutive but guaranteed the addressee greater security regarding the disposal. Moreover, one should mention the rights of the electors concerning election of the king and participation in the electors’ council. In addition, the imperial princes were present at court and imperial diets, held by the king, to grant the counsel and help (consilio et auxilio) owed by reason of the feudal relationship. However, there also existed, comparatively early, congregations of the imperial princes without the king, in particular to find adequate interim measures and to prepare the election of a new king in times of a vacancy of the throne, but also to oppose the king and his reign and to formulate a claim to act in favour of the Empire against the king. They may be qualified as a forerunner of the later imperial diet that saw itself as the congregation of all imperial estates.

With the reform movements at the close of the 15th century the legal structure of the Holy Roman Empire as a royal and princely reign changed essentially. In the 16th century, in the context of the Reformation and the following confessional and political conflicts, further important amendments to the constitution of the Empire were made. The last changes which the Holy Roman Empire had to undergo were caused by the final decision of the imperial deputation, broadly secularizing the ecclesiastical imperial estates and mediatizing the imperial towns and smaller secular reigns; thus, the Empire became definitively a secular entity.

10  Essentially, the constitutional changes consisted of a firmer establishment and an institutionalization of both the traditional royal or imperial reign and the collaboration with that reign by the princes, counts and cities that had become imperial estates. Thereby, the personal rulership of the king or emperor was not abolished but noticeably pushed into the background. Hence, contemporary science distinguished between a personal or real rulership and a legally organized, institutionalized rulership of the Empire. An equivalent distinction was made with regard to the imperial estates’ rights of participation and the princely reign. The last two centuries before the end of the Holy Roman Empire were, then, moulded by a legal and organizational perpetuation or solidification of the process started in the 15th century.

11  While legal scholarship in the 17th and 18th centuries generally focused on the elective character of the monarchy and the Holy Roman Empire and, thus, pointed to the continuation of the medieval royal reign with some changes to its traditional legal structure that resulted from the historical developments, new research, because of the restrictedly maintained personal nature of that reign, often qualifies the Empire in the modern era as a supranational personal association with European anchoring, thereby stressing the continuation of the feudal bindings as a determining element for the legal structure.

12  Notwithstanding, a striking expression of the constitutional changes was the fact that the royal and imperial reign was increasingly based on written or at least recorded law. Nearly all areas of the royal and imperial reign, including the collaboration of the imperial estates, were in modern times made the subject of imperial legislation. First, one has to mention the Golden Bull. Although already proclaimed in the Late Middle Ages, the Bull got its real significance in the modern era. Until the end of the Empire, it conclusively and definitively ruled the important question of the election of the German kings and Roman emperors, the legal status of the princes as electors and, thus, the succession to the throne; amendments were only made with regard to the number of electors and the combining of the places of election and coronation. Moreover, the Imperial Diet at Worms in 1495 passed nine acts, in particular the Eternal Land Peace and the Application of Peace and Law that permanently ruled the area of peacekeeping, the Chamber Court Order about the execution of royal and imperial jurisdiction that was reinforced by the Imperial Court Council Order in 1654, and the Ordinance concerning the Common Penny. The Treaty of Passau in 1552 and the decisions of the Imperial Diet of Augsburg in 1555 covered a further important area: the peace between the confessions existing in the Empire. That legislation was concluded by the Peace of Westphalia (Westphalia, Peace of [1648]). Although not formally elevated as an imperial act, the capitulatio perpetua of 1711 which had been used as a basis for the election concessions of Charles VI was also regarded as belonging to the circle of imperial basic laws. Thus, such aspects within the structures of the reign were legally covered that concerned the execution of the imperial powers both internally and externally and outlined at least a part of the emperor’s duties and rights. In addition, the legal scholarship of the 18th century pointed to a series of other acts to be qualified as fundamental for the Empire’s legal structure, eg the imperial decision of 1521 concerning the district organization of the Empire and the imperial register, the Imperial Police Order of 1530 with its amendments in 1548 and 1577, the constitutio criminalis carolina of 1532, the various imperial acts concerning coins of the 16th to the 18th centuries, the Imperial Court Chancellery Order of 1570, the peace treaties of Ryswik (1697), Baden (1714), and Aachen (1748) and especially of Teschen in 1779 that completely fulfilled the Peace of Westphalia, and, finally, the imperial acts concerning trade of the 18th century.

13  As a consequence, the execution of the imperial powers was in the modern era bound and, thus, limited by the written imperial law, the specific rights of the electors and of the dukes, and the participation of the imperial estates. Furthermore, it was steadily institutionalized in so far as the emperor made use of a bureaucracy with fixed competencies, in particular the Aulic Council. However, the king and emperor, until the end of the Holy Roman Empire, remained owner of the highest and, at the same time, concluding power. This meant that he still had disposal with regard to imperial and ecclesiastical goods, though linked with the collaboration of the imperial estates, namely the electors. He had the power over all imperial fiefs but the redisposal of such fiefs that had reverted to the Empire no longer belonged exclusively to his free discretion and he had a mere supreme authority in relation to the distributed imperial fiefs. The disposal of iura regalia by granting privileges in many cases, in particular by reason of election concessions, needed the collaboration of the electors and dukes, although it was, in principle, undisputed that the emperor had the power to dispose. Furthermore, the emperor had the power to elevate the status of persons; regardless of the participatory rights of the electors and dukes, he could, thus, change and determine the composition of the princely estate according to his wishes. Furthermore, the emperor still had legislative power that was, in the modern era, concretized by the proposition, ratification, sanction, and publication rights during the process of the Imperial Diet. The legislative acts were passed in the name of the king and emperor, though, in principle, with the consent of the imperial estates. Finally, the emperor remained owner of the highest adjudicative power in the Empire which can, inter alia, be read from his right to cassation, fulfilment, and granting of court privileges. To classify the royal and imperial reservatory rights, contemporary legal scholarship distinguished between rights that could be used by the emperor exclusively and unlimitedly and those the execution of which required the cooperation of the electors and dukes (so-called iura limitata et comitialia).

14  On the other side of the coin, one could also find changes with regard to the participatory rights of the electors, dukes, and other imperial estates that were joined in the course of the modern era by the imperial cities. The imperial estates were, at any time, regarded as fellow rulers of the Empire, though their participatory rights were more restricted, compared with those of the king and emperor, and their position was legally subordinate to that of the king and emperor, regardless of the fact that the countries which had meanwhile become territorial reigns strived for the independent execution of power. The imperial estates’ most important right was to take part in the decisions of the Imperial Diet that since 1663 had become a permanent institution of the Empire. Another right to be mentioned was the one to conclude alliances, though in the framework of the Application of Peace and Law and, later, the Peace of Westphalia, the emperor could quash an alliance treaty that was not in accordance with the legal provisions.

15  A last change in the Empire’s legal structure was the establishment of a territorial sovereignty over the imperial estates’ countries. The traditional princely reign increasingly developed from a dynastically determined to a territorially related rulership with a permanent legal organization, for which the notion ‘State’ became established (State; Territorial Integrity and Political Independence). Nevertheless, the territorial States as well as the ecclesiastical and the secular rulerships of the Middle Ages were based on imperial law, and the execution of power was ruled and restricted by imperial legislation. All territorial reigns were derived and for the most part territorially fixed; their content, framework, and limits were determined by imperial law. Furthermore, all imperial acts were immediately applicable in the territorial reigns and the execution of power stood under the king’s and emperor’s supervision, practised by the Aulic Council.

16  Contemporary legal scholars described the Holy Roman Empire in the modern era as a monarchy where the execution of the power of the emperor as monarch was in certain important affairs linked with the consent of the imperial estates; the Empire as such consisted of various countries, each of which had its own power that could not be executed independently but was subordinate to the imperial power and bound by imperial law. Hence, as for instance Johann Stephan Pütter pointed out, it was not a mere system of loosely connected States but a composed State (res publica composita), the head of which was the emperor owning and executing the State authority in the whole German Empire (JS Pütter Kurzer Begriff des teutschen Staatsrechts [2nd ed Vandenhoeck Göttingen 1768] 14).

C.  Legal Qualification; Relevance from the Standpoint of International Law

17  Under both historians and legal scholars the qualification of the Holy Roman Empire is disputed. Some hold that the Empire in the modern era was itself a State in the sense of a permanent legal organization with an established arsenal of institutions, at least a complementary State (Schmidt 43) or framework State (A Gotthard Das Alte Reich 1495–1806 [Wissenschaftliche Buchgesellschaft Darmstadt 2003] 6). It could, therefore, even play the role of an identification model for today’s States because it was a political association that was neither belligerent, nor expansive, and was based on consensus (Belligerency). Conversely, other scholars argue that the Empire, although having a common head, a common jurisdiction, and a compulsory power towards its members, must be qualified as an atypical confederation in the sense of a union of States under international law (Confederations of States), which, to a certain extent, could be compared with the United Nations (see Randelzhofer 297). Moreover, the structure of the Empire could be used as a model for the process of European unification or at least for a future European federalism (see Thieme 556; European Integration). In any event, the Empire lacked the main characteristics of a union of States under international law, for it was not a voluntary union of independent sovereign States having the same rights and duties (States, Sovereign Equality). Rather, the members were subordinate to the emperor as head, while the mutual relationship was based at first on loyalty resulting from the medieval feudal system and later on binding written imperial law created under the participation of the imperial estates, imposed and secured by imperial institutions, namely the Aulic Council. Furthermore, all powers were traced back to the emperor; it was not the emperor who needed to be vested with authority by the imperial estates. Thus, the emperor was forced to transfer authority to the princes in the framework of his election concessions. After all, the Holy Roman Empire might be qualified as an early federal State, though in a rough, unpolished form (Federal States); but it was far from being a mere union of States. Europe, the European Union in the form of passed the point some time ago where the ancient Empire could have been a model; instead, the European Union is now itself a model for other regions of the world, not least in Latin America (European Union, Historical Evolution ; Regional Co-operation and Organization: American States).