Part 1210

"At the election of Rudolph [1272 or 1273?] we meet for the first time the fully developed college of electors as a single electoral body; the secondary matter of a doubt regarding what individuals composed it was definitely settled before Rudolph's reign had come to an end. How did the college of electors develop itself? … The problem is made more difficult at the outset from the fact that, in the older form of government in Germany there can be no question at all of a simple electoral right in a modern sense. The electoral right was amalgamated with a hereditary right of that family which had happened to come to the throne: it was only a right of selection from among the heirs available within this family. Inasmuch now as such selection could,—as well from the whole character of German kingship as in consequence of its amalgamation with the empire—take place already during the lifetime of the ruling member of the family, it is easy to understand that in ages in which the ruling race did not die out during many generations, the right came to be at last almost a mere form. Usually the king, with the consent of those who had the right of election, would, already during his lifetime, designate as his successor one of his heirs,—if possible his oldest son. Such was the rule in the time of the Ottos and of the Salian emperors. It was a rule which could not be adhered to in the first half of the 12th century after the extinction of the Salian line, when free elections, not determined beforehand by designation, took place in the years 1125, 1138 and 1152. Necessarily the clement of election now predominated. But had any fixed order of procedure at elections been handed down from the past? The very principle of election having been disregarded in the natural course of events for centuries, was it any wonder that the order of procedure should also come to be half forgotten? And had not in the meantime social readjustments in the electoral body so disturbed this order of procedure, or such part of it as had been important enough to be preserved, as necessarily to make it seem entirely antiquated? With these questions the electoral assemblies of the year 1125 as well as of the year 1138 were brought face to face and they found that practically only those precedents could be taken from what seemed to have been the former customary mode of elections which provided that the archbishop of Mainz as chancellor of the empire should first solemnly announce the name of the person elected and the electors present should do homage to the new king. This was at the end of the whole election, after the choice had to all intents and purposes been already made. For the material part of the election, on the other hand, the part that preceded this announcement, they found an apparently new expedient. A committee was to draw up an agreement as to the person to be chosen; in the two cases in question the manner of constituting this committee differed. Something essential had now been done towards establishing a mode of procedure at elections which should accord with the changed circumstances. One case however had not been provided for in these still so informal and uncertain regulations; the case, namely, that those taking part in the election could come to no agreement at all with regard to the person whose choice was to be solemnly announced by the archbishop of Mainz. And how could men have foreseen such a case in the first half of the 12th century? Up till then double elections had absolutely never taken place. Anti-kings there had been, indeed, but never two opposing kings elected at the same time. In the year 1198, however, this contingency arose; Philip of Suabia and Otto IV were contemporaneously elected and the final unanimity of choice that in 1152 had still been counted on as a matter of course did not come about. As a consequence questions with regard to the order of procedure now came up which had hardly ever been touched upon before. First and foremost this one: can a better right of one of the elected kings be founded on a majority of the votes obtained? And in connection with it this other: who on the whole has a right to cast an electoral vote? Even though men were inclined now to answer the first question in the affirmative, the second, the presupposition for the practical application of the principle that had been laid down in the first, offered all the greater difficulties. Should one, after the elections of the years 1125 and 1152 and after the development since 1180 of a more circumscribed class of princes of the realm, accept the existence of a narrower electoral committee? Did this have a right to elect exclusively, or did it only have a simple right of priority in the matter of casting votes, or perhaps only a certain precedence when the election was being discussed? And how were the limits to be fixed for the larger circle of electors below this electoral committee? These are questions which the German electors put to themselves less soon and less clearly than did the pope, Innocent III, whom they had called upon to investigate the double election of the year 1198. … He speaks repeatedly of a narrower electoral body with which rests chiefly the election of the king, and he knows only princes as the members of this body. And beyond a doubt the repeated expressions of opinion of the pope, as well as this whole matter of having two kings, at the beginning of the 13th century, gave men in Germany cause for reflection with regard to these weighty questions concerning the constitutional forms of the empire. One of the most important results of this reflection on the subject is to be found in the solution given by the Sachsenspiegel which was compiled about 1230. Eike von Repgow knows in his law-book only of a precedence at elections of a smaller committee of princes, but mentions as belonging to this committee certain particular princes: the three Rhenish archbishops, the count Palatine of the Rhine, the duke of Saxony, the margrave of Brandenburg and,—his right being questionable indeed—the king of Bohemia. … So far, at all events, did the question with regard to the limitation of the electors seem to have advanced towards its solution by the year 1230 that an especial electoral college of particular persons was looked upon as the nucleus of those electing. But side by side with this view the old theory still held its own, that certainly all princes at least had an equal right in the election. Under Emperor Frederick II, for instance, it was still energetically upheld. A decision one way or the other could only be reached according to the way in which the next elections should actually be carried out. Henry Raspe was elected in the year 1246 almost exclusively by ecclesiastical princes, among them the three Rhenish archbishops. He was the first 'priest-king' (Pfaffenkönig). The second 'priest-king' was William of Holland. He was chosen by eleven princes, among whom was only one layman, the duke of Brabant. The others were bishops; among them, in full force, the archbishops of the Rhine. {3761} Present were also many counts. But William caused himself still to be subsequently elected by the duke of Saxony and the margrave of Brandenburg, while the king of Bohemia was also not behindhand in acknowledging him—that, too, with special emphasis. What transpired at the double election of Alphonse and Richard in the year 1257 has not been handed down with perfect trustworthiness. Richard claimed later to have been elected by Mainz, Cologne, the Palatinate and Bohemia; Alphonse by Treves, Saxony, Brandenburg and Bohemia. But in addition to the princes of these lands, other German princes also took part,—according to the popular view by assenting, according to their own view, in part at least, by actually electing. All the same the lesson taught by all these elections is clear enough. The general right of election of the princes disappears almost altogether; a definite electoral college, which was looked upon as possessing almost exclusively the sole right of electing, comes into prominence, and the component parts which made it up correspond in substance to the theory of the Sachsenspiegel. And whatever in the year 1257 is not established firmly and completely and in all directions, stands there as incontrovertible at the election of Rudolph. The electors, and they only, now elect; all share of others in the election is done away with. Although in place of Ottocar of Bohemia who was at war with Rudolph Bavaria seems to have been given the electoral vote, yet before Rudolph's reign is out, in the year 1290, Bohemia at last attains to the dignity which the Sachsenspiegel, even if with some hesitation, had assigned to it. One of the most important revolutions in the German form of government was herewith accomplished. From among the aristocratic class of the princes an oligarchy had raised itself up, a representation of the princely provincial powers as opposed to the king. Unconsciously, as it were, had it come into being, not exactly desired by anyone as a whole, nor yet the result of a fixed purpose even as regarded its separate parts. It must clearly have corresponded to a deep and elementary and gradually developing need of the time. Undoubtedly from a national point of view it denotes progress; henceforward at elections the danger of 'many heads many minds' was avoided; the era of double elections was practically at an end."

_K. Lamprecht, Deutsche Geschichte (translated from the German), volume 4, pages 23-28._

See, also, GERMANY: A. D. 1125-1152 (page 1444).

GERMANY:A. D. 1154-1190. Frederick Barbarossa in Italy.

See (in this Supplement) ITALY: A. D. 1154-1190.

GERMANY:A. D. 1162-1177. The Emperor and the Pope.

See (in this Supplement) PAPACY: A. D. 1162-1177.

GERMANY:12th-17th Centuries. Causes of the Disintegration of the Empire.

"The whole difference between French and German constitutional history can be summed up in a word: to the ducal power, after its fall, the crown fell heir in France; the lesser powers, which had been its own allies, in Germany. The event was the same, the results were different: in France centralization, in Germany disintegration. The fall of the power of the stem-duchies is usually traced to the subjugation of the mightiest of the dukes, Henry the Lion, who refused military service to the Emperor Frederick Barbarossa just when the latter most needed him in the struggle against the Lombards.

See SAXONY: A. D. 1178-1183 (page 2813).

… The emperor not only banned the duke, he not only took away his duchy to bestow it elsewhere, but he entirely did away with this whole form of rule. The western part, Westphalia, went to the archbishops of Cologne; in the East the different margraves were completely freed from the last remnants of dependence that might have continued to exist. In the intervening space the little ecclesiastical and secular lords came to be directly under the emperor without a trace of an intermediate power and with the title of bishop or abbot, imperial count, or prince. If one of these lords, Bernard of Ascanium, received the title of Saxon duke, that title no longer betokened the head of a stem or nation but simply an honorary distinction above other counts and lords. What happened here had already begun to take place in the other duchy of the Guelphs, in Bavaria, through the detachment from it of Austria; sooner or later the same process came about in all parts of the empire. With the fall of the old stem-duchies those lesser powers which had been under their shadow or subject to them gained every where an increase of power: partly by this acquiring the ducal title as an honorary distinction by the ruler of a smaller district, partly by joining rights of the intermediate powers that had just been removed to their own jurisdictions and thus coming into direct dependence on the empire. … Such was the origin of the idea of territorial supremacy. The 'dominus terrae' comes to feel himself no longer as a person commissioned by the emperor but as lord in his own land. … As to the cities, behind their walls remnants of old Germanic liberty had been preserved. Especially in the residences of the bishops had artisans and merchants thriven and these classes had gradually thrown off their bondage, forming, both together, the new civic community. … The burghers could find no better way to show their independence of the princes than that the community itself should exercise the rights of a territorial lord over its members. Thus did the cities as well as the principalities come to form separate territories, only that the latter had a monarchical, the former a republican form of government. … It is a natural question to ask, on the whole, when this new formation of territories was completed. … The question ought really only to be put in a general way: at what period in German history is it an established fact that there are in the empire and under the empire separate territorial powers (principalities and cities)? As such a period we can designate approximately the end of the 12th and beginning of the 13th centuries. From that time on the double nature of imperial power and of territorial power is an established fact and the mutual relations of these two make up the whole internal history of later times. … The last ruler who had spread abroad the glory of the imperial name had been Frederick II. For a long time after him no one had worn the imperial crown at all, and of those kings who reigned during a whole quarter of a century not one succeeded in making himself generally recognized. There came a time when the duties of the state, if they were fulfilled at all, were fulfilled by the territorial powers. {3762} Those are the years which pass by the name of the interregnum. … Rudolph of Hapsburgh and his successors, chosen from the most different houses and pursuing the most different policies, have quite the same position in two regards: on the one hand the crown, in the weak state in which it had emerged from the interregnum, saw itself compelled to make permanent concessions to the territorial powers in order to maintain itself from one moment to another; on the other hand it finds no refuge for itself but in the constant striving to found its own power on just such privileged territories. When the kings strive to make the princes and cities more powerful by giving them numerous privileges, and at the same time by bringing together a dynastic appanage to gain for themselves an influential position: this is no policy that wavers between conceding and maintaining. … The crown can only keep its place above the territories by first recognizing the territorial powers and then, through just such a recognized territorial power by creating for itself the means of upholding its rights. … The next great step in the onward progress of the territorial power was the codification of the privileges which the chief princes had obtained. Of the law called the 'Golden Bull' only the one provision is generally known, that the seven electors shall choose the emperor; yet so completely does the document in question draw the affairs of the whole empire into the range of its provisions that for centuries it could pass for that empire's fundamental law. It is true that, for the most part it did not create a new system of legislation but only sanctioned what already existed. But for the position of all the princes it was significant enough that the seven most considerable among them were granted an independence which comprised sovereign rights, and this not by way of a privilege but as a part of the law of the land. A sharply defined goal, and herein lies the deepest significance, was thus set up at which the lesser territories could aim and which, after three centuries, they were to attain. … This movement was greatly furthered when on the threshold of modern times the burning question of church reform, after waiting in vain to be taken up by the emperor, was taken up by the lower classes, but with revolutionary excesses. … The mightiest intellectual movement of German history found at last its only political mainstay in the territories. … This whole development, finally, found its political and legal completion through the Thirty Years War and the treaty of peace which concluded it. The new law which the Peace of Westphalia now gave to the empire proclaimed expressly that all territories should retain their rights, especially the right of making alliances among themselves and with foreigners so long as it could be done without violating the oath of allegiance to the emperor and the empire. Herewith the territories were proclaimed to be what they had really been for a long time—states under the empire."

_I. Jastrow, Geschichte der deutschen Einheitstraum und seiner Erfüllung (translated from the German). pages 30-37._

GERMANY: 13th-15th Centuries. The rise of the Free Cities and their Leagues.