Self-Defence and Religious Strife in Early Modern Europe

England and Germany, 1530–1680

Robert von Friedeburg

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351901277
• Edition: 1
• Topic: History
• Subtopic: World History
• Index: History

Recent research has begun to highlight the importance of German arguments about legitimate resistance and self-defence for French, English and Scottish Protestants. This book systematically studies the reception of German thought in England, arguing that it played a much greater role than has hitherto been acknowledged. Both the Marian exiles, and others concerned with the fate of continental Protestantism, eagerly read what German reformers had to say about the possibility of resisting the religious policies of a monarch without compromising the institution of monarchy itself. However, the transfer of German arguments to England, with its individual political and constitutional environment, necessarily involved the subtle transformation of these arguments into forms compatible with local traditions. In this way, German arguments contributed significantly to the emergence of new theories, emphasising natural rights.

Part One
The rule of law vindicated

Chapter One
Reform and reformation: resistance and defence in German lands, 1488-1528

In spring 1504 Maximilian I had reason to complain about German noblemen, corporations and princes associated in the Swabian league. Maximilian had attempted to negotiate a settlement between Duke Albrecht IV of Bavaria and the Palatinate elector Rupprecht in a conflict about an inheritance. Albrecht, a member of the Swabian league, had long previously secured the support of that association in case of a conflict with Rupprecht and wished to proceed with prosecuting his claims. Maximilian however, himself a member of the league as lord of Tyrol and Austria's Upper German lands, wished to prolong negotiations to make maximum profit from his role as mediator. In April 1504, he thus ordered the members of the league to keep peace until June. But these members refused to submit. If Albrecht requested military support, they were, according to the ordinances of the league, obliged to support him as member of this league. The Emperor himself, they reminded the German king, had sworn to comply with these ordinances. The electoral prince Archbishop Berthold of Henneberg even told another member of the league, who had proved reluctant to refuse to comply with a wish of the Emperor, that he must not obey the king 'against his duty, letters and patent' as set by the Swabian league. What he had sworn to do as member of the Swabian league must override his duty to the king. No wonder that Maximilian, learning of the disobedience of the members of the Swabian league, sighed to heaven, 'Lord, I can't find obedience'.¹

In fact, the situation was less critical than that. For Maximilian had not joined the Swabian league as king, but as just another territorial lord. In contrast, his father Emperor Frederick III, who had instigated the founding of the league in 1487/88 and had even forced the Swabian corporations and noblemen to join, had himself been a member as Emperor, not as territorial lord. The other members of the league, however, understood his membership as voluntary submission to the terms of the league. Despite his being the Emperor, according to their reasoning, he was thus bound by these terms. Frederick had scheduled the existence of the Swabian league to be terminated with the duration of the current 'Reichslandfrieden' - that is, by 1496. The other members of the Swabian league therefore understood the Emperor to be legally bound to this intention and the league to be terminated in 1496, despite Frederick's later wishes to the contrary.² Frederick understood such an allegation as an infringement on his imperial plenitudo potestatis.³ Already in 1489 Frederick and the league he himself had founded clashed on this issue. In May 1489 the other members of the Swabian league swore to bring any imperial mandate in conflict with the provisions of the league before the convent of the league to discuss it there. While insisting on their unfailing obedience to the Emperor, they understood that obedience to be due to the regulations the Emperor had himself specified when he had originally founded the league.

Three issues merit attention. One, documents using the arguments surrounding this dispute as legal evidence on relevant precedent were edited throughout the sixteenth and seventeenth century. For instance, the minutes of the 1489 assembly of the Swabian league and their debate were edited and printed as late as 1698.⁴ Likewise, the arguments in favour and against a right to resist Emperor Charles V in the period 1530 to 1550 were edited and commented in 1618.⁵ The success and failure of such arguments would provide legal evidence in cases before courts of law throughout the Early Modern period.

Second, each side took the utmost pain to give its deliberations the colour of legality, for legality provided legitimacy. Legality, however, was not least determined by precedent. While Roman Law only provided a guideline on methodologies to interpret the evidence, the actual extent of power and influence of the Emperor in any specific case was understood as being determined by precedent.⁶

Third, and most important, precedent was scarce. The most important legal document about the rights and duties of king and electors was the Golden Bull of 1356.⁷ By that date, a kingdom like England possessed a plethora of legal evidence on the power of the king and the respective duties of the barons. For instance, regulations on self-defence went back to precedent in the thirteenth century curtailing the ability of great barons and their servants to harm subjects of the king under pretence of self-defence. What is more, the doomsday book had mapped the realm of England. To a degree entirely alien to the Central European lands somehow part of the Empire, royal law had developed into Common Law and royal justices were responsible for the administration of justice across the realm.

In contrast, only during the latter part of the fifteenth century, not least due to the pressure of the Turkish threat, did the corporations, families and kings of the Empire begin to institute a regular Diet and to attempt to introduce institutional structures to give the Empire the shape of a state. Thus, when the Protestant princes began to argue about resistance and self-defence against the Emperor after the advent of the Reformation, the making of this state was just in the process of happening. The arguments, legal proceedings and statutory results of the ensuing struggle were themselves going to become part of the legal evidence of the later sixteenth and seventeenth century used to argue in conflicts to come. To understand the arguments about resistance and self-defence in Germany it is crucial to keep in mind that they did not develop within a clear-cut relation between king and nobility or within a firm framework of law developed over centuries. Rather, they were themselves to shape the nature of that hierarchy just as it was about to emerge. Peasants, lords, princes and the Emperor himself had thus diverging ideas about proper legal procedure because there was room for quite a degree of varying opinions. It is thus highly significant that even in 1525 - that is, three decades after legal reform of the Empire had introduced a number of new legal procedures and institutions to abolish feuds - the Catholic laymen Goebel in Eastern Westfalia believed the rumour that Charles V had sent Philip of Hesse a cross and a sword with a letter indicating a feud against him to punish him for his heresies. In the minds of many Germans, such a procedure still seemed plausible.⁸

Therefore, the members of the Swabian league could stress their obedience to Frederick and Maximilian and yet negotiate their approach to the legal framework of their actions that was going to define what exactly obedience would be taken to mean. To understand this background to arguments later received and employed in Germany, and subsequently in England as well, we must shortly familiarise ourselves with the nature of the Empire at the advent of the Reformation and peasant uprisings.

Based on the idea of continuing the Roman Empire, the Empire provided a framework for a number of noble families and corporations and had been identified as regnum teutonicum since the eleventh century. While the Emperor remained elected by the electoral princes, even the other German princes retained a number of privileges, making them substantially different from other members of Europe's high nobility. By 1500, their 'Landesherrschaft' was not yet territorial rule; it was not yet public power projected on geographically defined and closed areas. That change was only to begin as one of the legal consequences of the Reformation. But it was already much more substantial then noble rule elsewhere. It consisted of a bundle of possessions, powers and rights that constituted a more or less defined sphere of influence. Among such possessions and rights, some could be particularly important to establish authority in an area. For example, a concentration of demesne lands in a given area, rights conferred by feudal ties, jurisdictional rights, real or alleged ancient royal privileges like customs, coinage, mining or protective rights over ecclesiastical corporations (Vogtei) could play a role. These rights were not yet understood in terms of modern ideas of sovereignty. Nor were they yet projected on geographical spaces as closed territories. But they constituted a much more independent basis of power than members of the English nobility could claim. German kings themselves based their influence mainly on the resources of their own regional spheres of power rather then on what they could get from the Empire or as kings. Royal politics were thus primarily dynastic, secondly related to their own areas of influence and their consolidation, and only then related to the kingdom as a whole. While still a monarchy, the Empire has therefore also been characterised as a number of noble families and corporations bound together by a multitude of ties and mutual obligations.

It would be wrong, however, to conclude from this that there was no Empire at all, but only a number of petty principalities independent from each other and from the Emperor, While the princes were bound to the Emperor by feudal ties, their power was restricted towards their own vassals as well. Indeed, many towns and noble families, and even peasants, had multiple ties to various authorities. This was to remain the fact in Franconia right up until the demise of the Empire after 1792. The Emperor and neighbouring princes would not hesitate to support such vassals and towns to exert influence and extend their own area of influence into neighbouring areas. The amount of such influence was subject to both rapid and long-term change. Whether or not a piece of land was actually part of the Empire was not least determined by the quality of relations between a specific prince and the Emperor. The dukes of Lothringia and Brabant for a time seriously thought about getting rid of their feudal ties and dues altogether. Likewise, while Bohemia fell to the Habsburg family in 1526 its connection to the Empire remained complicated and when the Empire was divided into administrative circles in the course of reform after 1495, Bohemia was exempted from that development.⁹

Membership of the Empire, until the beginning of a number of administrative reforms from 1495,¹⁰ was primarily determined by the relationship of families to each other. Only from these reforms onwards did the Empire attempt to tax its members in any sustained way. Only then were a common law court and a diet instituted in any regular fashion in order to produce compliance with these taxes, to make law and to administer justice. Prior to these changes, but in fact still relevant for the later period, historians have addressed the Empire as a number of overlapping spheres of influence. Historians have distinguished a more concentrated sphere of influence under the Emperor south of the river Main and spheres of decreasi...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Contents
• Preface
• Introduction: Sovereignty and religious strife: the state of the argument on resistance and self-defence
• Part One The rule of law vindicated
• Part Two The rule of law disintegrated: necessity, self-defence and the reception of German political thought in England, 1553-164
• Bibliography
• Index