Holy Roman Empire

The Holy Roman Empire was a union of sovereign German states under an elective emperor, restored by the Imperial Act of 9 June 1815 at the Congress of Vienna and destroyed by Prussia in the war of 1866. It carried the name of the Empire dissolved in 1806, claimed to be that Empire continuing, and was in almost every practical respect a different institution. Forty-one states belonged to it, four of them free cities. Its Diet sat permanently at Frankfurt am Main. Its emperor was elected at Regensburg and crowned at Aachen, and was a Habsburg at every election held.

The restored Empire could not legislate for a subject, raise a tax, coin money, keep an army in being or compel a member state to do anything. It could pass resolutions binding on its members, garrison a small number of fortresses, maintain a court, and register the agreement of sovereigns who were free to withhold it. The first article of its founding instrument guaranteed the internal sovereignty of every member, and that guarantee is the whole of its constitution. Everything the Empire did between 1815 and 1866 was done either with the consent of the states concerned or in defiance of an article nobody was in a position to enforce.

Its record is accordingly narrow and, in one respect, worse than narrow. The Empire supplied the constitutional machinery for the Carlsbad Decrees of 1819 and for the censorship, university surveillance and political policing that followed them, which is the serious charge against it and the thing for which it is principally remembered in Germany. Against that stands the Imperial Chamber Court at Wetzlar, in which a subject could sue his own prince, and which is the restored Empire’s single genuine achievement. The court’s jurisdiction rested on the claim that the Empire had never died in 1806 but had merely been suspended, a claim Prussia and the middle states rejected in theory for fifty-one years while eventually conceding it in practice.

The Empire’s internal history is the history of Austria and Prussia inside a structure that gave them equal votes and an alternating presidency. Prussia consented to the restoration in 1815 on terms it judged cheap, taking the Rhineland, the army and later the customs union while leaving Vienna the imperial dignity. Prussia then abstained at every imperial election for fifty-one years as a standing protest, built a customs union that excluded the Emperor’s own lands, and destroyed the Empire by force in seven weeks in 1866. Franz Joseph laid the crown down after Königgrätz, deliberately echoing 1806 and this time claiming no suspension. No instrument dissolved the Empire itself, which simply stopped meeting, and the legal date of its end has been argued over ever since.

The German Empire proclaimed in 1871 acknowledges the older Empire and declines to call itself its successor.

Name, style and symbols

The name and the continuity claim

The restored Empire took the plain style the Holy Roman Empire, without the qualifying phrase of the German Nation that had been usual in the last centuries of the old Empire. The omission was deliberate and was argued for at Vienna on two grounds, one stated and one not. The stated ground was that the older and shorter form was the more ancient and therefore the more legitimate. The unstated ground was that a Habsburg emperor whose own monarchy contained Hungarians, Czechs, Poles, Italians and Croats had no interest in a title that described his authority as German.

The Empire’s official position was that 1806 had been a suspension and never a death. On this view Francis had laid down the exercise of the imperial office under duress and had not extinguished the office itself, which continued in abeyance until it could be resumed; the Imperial Act of 1815 accordingly restored an authority rather than creating one. The doctrine was pressed hard by Austrian jurists throughout the Empire’s existence and was never accepted by Prussia, by Bavaria, by Württemberg or by Saxony, all of whom held that the Empire of 1815 was a new union which had adopted an old name and was entitled to nothing beyond what the Imperial Act gave it.

The dispute was not antiquarian. It decided what the Empire’s court could hear, whether the imperial dignity carried any authority not written into the Act, and whether the numbering of emperors continued from the old line or began again. The Empire numbered its emperors as though nothing had happened, which is why the first emperor of the restored Empire is Francis II and not Francis I, and why the second is Ferdinand IV, counting from the Ferdinands of the sixteenth and seventeenth centuries. Prussia’s envoys used the numbering in correspondence and denied that anything followed from it.

The imperial style

The Emperor was styled Holy Roman Emperor, a modernised and simplified form. The old chancery style, which had described its subject as Roman Emperor elect and had run to several lines of subordinate titles, was abandoned at Vienna as unusable, and its abandonment was one of the few points on which Austria and Prussia agreed without argument. The style was used only within the Empire and only in imperial business. In every other context the same man was the Emperor of Austria, a hereditary title created in 1804 as insurance against the loss of the older crown, and the two were kept legally distinct throughout.

The distinction was maintained with some care, because a great deal turned on it. Advice tendered to the Emperor of Austria came from Austrian ministers; advice tendered to the Holy Roman Emperor came from the imperial chancery at Frankfurt, which was staffed by Austrians and was not for that reason an Austrian department. Instruments were sealed separately. Oaths were separate. The Empire’s members were emphatic that the Emperor’s authority over them derived from his election and not from his other crown, and Austrian practice was scrupulous about this in form and comprehensively indifferent to it in substance.

The imperial chancery

The Emperor acted in imperial business through the imperial chancery at Frankfurt, a small permanent office of about thirty clerks under a chancellor, which drafted his communications to the Diet, kept the imperial register, sealed instruments and conducted the correspondence of the dignity. It was the only standing body the Emperor had, and it existed because the Emperor never came to Frankfurt.

None of the three emperors ever attended the Diet. Francis regarded attendance as beneath the dignity, Ferdinand was incapable of it, and Franz Joseph considered it twice and was advised against it both times on the ground that an emperor present in a chamber where he could be outvoted was in a worse position than an emperor absent from it. The consequence is that the head of the Holy Roman Empire and the assembly of the Holy Roman Empire were never in the same room in fifty-one years except at the three elections, which were held elsewhere.

The chancery was staffed overwhelmingly by Austrians and its chancellors were Austrian without exception, which the members complained about at intervals and could not remedy, the Imperial Act having left the Emperor’s household arrangements to the Emperor. It was nonetheless not an Austrian department, and the distinction was maintained with some rigour in form: the chancery’s instruments ran in the name of the Emperor and not of Austria, its expenses fell on the imperial contribution and not on the Austrian treasury, and its chancellor did not sit in the Austrian ministry. Prussian jurists described the arrangement as a fiction sustained by bookkeeping. Austrian jurists replied that a great many constitutional arrangements are exactly that, which is true and was not the point in dispute.

Arms, colours and motto

The Empire bore the double-headed eagle, sable on gold, unchanged from the old Empire and undifferenced from the arms the Habsburgs used for Austria. The identity was noticed at once and complained about for fifty-one years. Prussian and Bavarian jurists observed that a union of sovereign states which could not be distinguished heraldically from the personal arms of its president was making a statement about itself, and successive proposals to difference the imperial eagle by a label, a bordure or an escutcheon were introduced at the Diet and never reached a vote.

The motto was new, chosen at Vienna, and in German rather than in Latin, which was presented at the time as a modernisation and was the only modernising decision the founders made. It ran Was bestand, besteht, meaning “what stood, stands”. It was intended as a statement of the continuity doctrine in four words and it functioned instead as the single most quoted line of anti-imperial satire in nineteenth-century Germany, where it was applied to bridges, to governments, to unpaid debts and to the Empire itself in roughly ascending order of derision.

Language and forms

The business of the Empire was conducted in German throughout. Latin was retained for nothing, not for the instruments, not for the oath and not for the coronation liturgy, which was a sharper break with the old Empire than the founders acknowledged and which the Catholic states of the south disliked without ever formally objecting. The Empire’s records, resolutions, judgments and diplomatic correspondence are therefore in German from the first day, a fact of no constitutional importance whatever and of great convenience to historians.

In ordinary speech the Empire was das Reich. Nobody said the whole name except in writing. The ironists, who were numerous, said das Papierreich, the paper Empire, and the term is old enough that its first recorded use in print is in a Hamburg newspaper of 1821, six years into the Empire’s existence and two years after the Carlsbad Decrees had demonstrated that the paper Empire could reach a man’s study after all.

The restoration of 1815

The vacancy, 1806 to 1815

Francis II laid down the imperial crown on 6 August 1806, three days after Napoleon’s ultimatum reached Vienna and eight months after Austerlitz. He had provided against the day two years earlier by assuming the hereditary style of Emperor of Austria, and the abdication was drafted to make restoration difficult for anyone else rather than to make it impossible for himself: it released the members from their obligations and said nothing whatever about the office.

For nine years the German lands had no common institution. The Confederation of the Rhine, which Napoleon erected in the same summer, was a French client system and was understood as one by every state that joined it, including the states that were made kingdoms for joining. Its collapse in 1813 left a vacuum that the Congress of Vienna was convened in part to fill, and the question of what should fill it was open for eight months.

The negotiation at Vienna

The restoration had two authors working for different reasons, and the article that resulted bears the marks of both.

Francis wanted the crown back for himself. The humiliation of 1806 was personal, recent and much discussed in Vienna, and the legitimist conviction of the period held that the Revolution and its heir had destroyed lawful things which it was the business of the peace to restore. On that view the imperial crown was not a policy question at all. It was property wrongfully taken, and the Congress existed to give such property back.

Metternich wanted the Empire back for Austria. His interest was in the instrument rather than the dignity: a standing legal claim on Germany, exercised through a body Austria would preside over, which would hold Prussia inside a structure rather than leaving it free outside one, and which could be used to keep the conservative order in the smaller states without Austrian troops having to do it. He was not much attached to the crown and was privately doubtful that it was worth the trouble of the negotiation. He conducted the negotiation anyway, and he conducted it better than Francis would have.

The powers were squared with less difficulty than the German states were. Britain was indifferent and conceded the point cheaply, having no German interest at stake beyond Hanover and a considerable interest in the Congress finishing. Russia supported it on legitimist grounds, the restoration of a lawful crown being precisely the principle the Tsar had come to Vienna to assert. France opposed it, correctly identifying it as an instrument of Austrian primacy in Germany, and was overruled without much ceremony by powers who had not forgotten who had dissolved the Empire in the first place.

Prussia bargained rather than resisted. This is the decision on which the following half-century turned. Berlin took the view that the imperial dignity was an antique which would cost Prussia nothing and buy Prussia a great deal, and traded its consent for the Rhineland and the western provinces, for a free hand in the reorganisation of its army, and for a settlement of the Saxon question. The judgment was defensible in 1815 and was defended for a generation afterwards. It was also the reason a Prussian government spent fifty-one years watching a Habsburg preside over Germany by right, and the reason the war of 1866 was fought to abolish an office rather than to win a province.

The middle states resisted hardest. Bavaria, Württemberg and Saxony had been made kingdoms in 1806 by the man who dissolved the Empire, and were being asked to accept an emperor over crowns of that provenance. Bavaria led the resistance and Bavaria set the price.

The price of the middle states

What the kingdoms demanded, and got, was a guarantee of sovereignty written into the first article of the instrument and not into a preamble, a protocol or a declaration. They wanted it justiciable, they wanted it first, and they wanted it in terms that could not be construed away. The Imperial Act opens with it.

The final clause of the third paragraph is the one that mattered, and it was drafted by a Bavarian. Its purpose was to forbid the argument from continuity before that argument could be made, by providing in advance that nothing could be deduced from the practice of the old Empire. Austrian jurists spent fifty-one years explaining that it forbade inference from ancient usage and did not forbid the survival of authorities that had never lapsed. The Bavarians replied that this was the same argument in different clothes. Neither side ever moved.

Membership

Forty-one states belonged to the Empire, a figure that includes four free cities and excludes the Habsburg and Hohenzollern lands lying outside Germany, which were not in the Empire and were the subject of a standing quarrel about whether their weight could be counted in the Diet. The number changed once, on the extinction of a princely line, and was otherwise stable for the whole period.

The four free imperial cities were Hamburg, Bremen, Lübeck and Frankfurt, and the Imperial Act restored to them the style of Free Imperial City, which they had held before 1806 and which had been abolished with almost every other free city in the Napoleonic reorganisation. The style carried nothing beyond membership and precedence. It was valued out of all proportion to what it conveyed, defended in the Diet with an energy the cities never applied to anything else, and is still used ceremonially by Hamburg and Bremen.

Three foreign sovereigns sat in the Empire for their German lands, and the arrangement was a standing embarrassment that the Empire never found a way to end. The King of Hanover was a member, and for all but three of the Empire’s fifty-one years he was also the sovereign of Great Britain: the personal union held to 1837, broke when a female sovereign acceded whom Hanoverian succession law excluded, and was restored in 1840, after which the same man held Hanover, Great Britain and the United Kingdom of America together. The King of Denmark was a member for Holstein, which is the constitutional root of the Elbe duchies question and therefore of the wars of 1864 and 1866. The King of the Netherlands was a member for Luxembourg. Each of them held a vote in the Diet of the Holy Roman Empire while owing the Empire nothing outside the German territory concerned, and each could and occasionally did instruct his envoy on grounds that had nothing to do with Germany at all.

The British thread

The Hanoverian case is the one with consequences outside Germany, and it has two halves divided by three years.

From 1815 to 1837 the sovereign of Great Britain sat as a member of a union headed by a Habsburg emperor, holding a vote at Frankfurt he almost never used and observing a precedence he found irritating. British ministers regarded Hanoverian membership as an inconvenience of the personal union rather than a policy, and the Foreign Office’s standing instruction to the Hanoverian envoy was to say as little as possible and vote with the majority. The union broke in 1837, Hanoverian succession law excluding a female sovereign, and for three years the Kingdom of Hanover voted at Frankfurt under a king who reigned nowhere else.

It was restored in 1840, and restored wider than it had been. The King of Hanover succeeded on the Queen’s death to Great Britain and to the United Kingdom of America as well, so that from 1840 until the Empire’s destruction the American Realm’s sovereign held, in a wholly separate capacity, a vote in the Diet of the Holy Roman Empire. American ministers took the settled view that nothing whatever followed from this for the Realm, which is the same view they took of the same sovereign’s seat in the German Bundesrat after 1871, and no American instrument has ever been drawn on the other footing. The vote was cast by a Hanoverian envoy on Hanoverian advice throughout, and there is no record of an American minister ever having been consulted about anything done at Frankfurt.

The Empire’s records preserve the last Hanoverian instruction issued before the separation of 1837, which is a note declining to take a position on a dispute about riverine tolls.

The members

The forty-one members ranged from Austria to principalities of a few thousand people, and the range is the fact that governed everything about how the Diet worked. Weighted voting in the plenum gave four votes each to Austria, Prussia, Bavaria, Saxony, Hanover and Württemberg, three each to Baden, the two Hesses and the two foreign-held territories, two to Brunswick, Mecklenburg-Schwerin and Nassau, and one to everybody else, for a total of seventy-one. A two-thirds majority was required for anything touching the Imperial Act, religion or the rights of members, which meant in practice that the six great votes could not carry such a question alone and that Austria and Prussia together could always block one.

The smallest member was the Principality of Liechtenstein, whose reigning house held a vote at Frankfurt equal to that of Hamburg and whose descendants supply the Kingdom of Alaska with its king in the present day. Liechtenstein’s envoy was for most of the period the same man as Austria’s, an arrangement the Diet knew about and never objected to, and the principality is the standard illustration of the Empire’s indifference to scale: a state of six thousand people voted on the mobilisation of 1866 and its vote was recorded in the same form as Bavaria’s.

The Habsburg and Hohenzollern lands outside Germany were not in the Empire. Hungary, Bohemia, Galicia and the Italian possessions were outside it, as were East Prussia and Posen, and the exclusion was the subject of a standing quarrel about whether a member’s non-German population could be counted in any assessment of its weight. The quarrel was never resolved because it never had to be, the Empire assessing contributions and contingents on German population alone by a schedule fixed in 1818 and revised twice.

Membership was closed. The Imperial Act provided no procedure for the admission of a new member and none for the withdrawal of an existing one, an omission which the Prussian declaration of 1866 turned to account by arguing that a compact without an exit is dissolved by breach or not at all. The number fell by one on the extinction of a princely line in 1849, whose territory passed by treaty to a neighbour, and the Diet spent nine months deciding what to do with the vacant vote before resolving to extinguish it.

The Emperor

Election

The imperial dignity was elective in form. The electoral college of the old Empire was not revived with it: the prince-electors had lost their dignity in the reorganisation of 1806 and did not get it back, and the Imperial Act gave the election instead to the member sovereigns sitting in Diet, voting by the weights used for ordinary business. A simple weighted majority carried it.

The election was held at Regensburg, not at Frankfurt where the Diet ordinarily sat. The choice was made at Vienna for reasons of pure antiquarianism, Regensburg having housed the Perpetual Diet of the old Empire from 1663 to 1806, and it required the whole apparatus of the Empire to move a hundred and fifty miles for a proceeding that never lasted more than two days. The states sent their sovereigns in person for an election, which they did on no other occasion; ordinary business was conducted throughout by instructed ambassadors.

Three elections were held in fifty-one years, and none was contested. In each the Habsburg was the only candidate proposed and was elected on the first ballot. The proceedings were formal to the point of liturgy: the vicars certified the vacancy, the benches were called in the ancient order, each sovereign answered in a single prescribed sentence, and the result was announced in a form of words unchanged since the fifteenth century.

Prussia abstained at every election. The abstention was Prussia’s standing protest, entered in identical terms on each of the three occasions, and it was not a protest against the candidate. Its stated ground was that the Diet was competent to elect only such an emperor as the Imperial Act provided for, that Austria maintained the imperial office carried authority beyond what the Act provided, and that Prussia could not vote for a dignity whose extent was in dispute without appearing to concede the dispute. The Hohenzollern envoy would rise, read the protest, sit, and take no part. It was understood on all sides as a formality. It was also, in the strict sense, a refusal to acknowledge the crown, maintained without interruption for fifty-one years by the state that eventually abolished it.

Coronation at Aachen

The Emperor was crowned at Aachen, in the minster of Charlemagne, reaching back past Frankfurt where the old Empire had actually crowned since 1562. The choice was legitimist in exactly the manner of the continuity doctrine, the argument being that Aachen was the coronation place of the Empire in its original character and that Frankfurt was a late convenience.

It had a consequence the founders appear not to have weighed. Aachen lay in the Rhine Province of Prussia from 1815, so that every coronation of a Holy Roman Emperor after the restoration took place on Prussian soil, reached by a Prussian road, under a Prussian garrison, by leave of the King of Prussia. Passage was granted on each of the three occasions and was granted formally, in writing, in terms that recorded it as a courtesy rather than a duty. Berlin never let Vienna forget it. The Prussian note of 1849, in particular, sets out at some length the arrangements Prussia had been pleased to make for the Emperor’s convenience, and is quoted in Austrian diplomatic histories as the most offensive document ever written in a wholly correct form.

The Archbishop of Cologne crowned, by old right, and the right was exercised without difficulty for the first two coronations and with a good deal of difficulty for the third. The Pope had no part in the restored Empire. The Protestant states made the omission a condition of the Imperial Act, and it went in without argument, Metternich having no wish to give Rome a lever in Germany and Francis having no wish to be crowned by anybody who might decline.

The regalia

The imperial regalia had gone to Vienna in 1800 to keep them from the French and were there when the Empire was restored. The crown, the orb, the sword and the Holy Lance were brought out for each coronation and returned to Vienna afterwards, travelling under Austrian escort across Germany and back, which required Prussian consent for the passage through the Rhine Province and got it every time.

Frankfurt asked for their permanent return in 1817, in 1834 and in 1848, arguing that the regalia of the Empire should rest in the seat of its Diet. Vienna refused on each occasion, on the ground that the regalia belonged to the imperial dignity and not to the Empire, which is a distinction the Imperial Act nowhere draws and which nobody was in a position to test. They remain in Vienna. No one but the Habsburgs has wanted them since 1866, and the German federal government has never asked, which is the more remarkable given that Germany asked for and received a great deal else.

The oath

The Emperor swore at Regensburg, before the sovereigns who had elected him, and the oath was sworn to the members and to God.

The last undertaking was inserted at Bavarian insistence and was regarded at the time as a piece of theatre, the Imperial Act providing no procedure whatever by which the Empire might lawfully require an emperor to lay the dignity down. Nothing came of it. When the third emperor did lay it down, in 1866, he did so unilaterally and at a moment when the Empire was not capable of requiring anything of anybody.

The imperial vicariate

Between the death or abdication of an emperor and the election of his successor, authority passed to the imperial vicars, an office of the old Empire revived by the Imperial Act and held jointly by Saxony and Bavaria, dividing the Empire north and south along the line the old vicariates had followed. The vicars could summon the Diet, certify the vacancy, conduct the election and do nothing else. They could not legislate, could not instruct the Chamber Court and could not receive envoys.

The office was designed to be trivial and was trivial twice. In 1835 the vicariate lasted eleven days. In 1848 it lasted the better part of a year and became the most contested constitutional question in Germany.

The three emperors

Francis II, Emperor of Austria, was elected at Regensburg in August 1815 and crowned at Aachen that October, resuming the numbering of the Empire he had laid down nine years earlier. He reigned in the imperial dignity for nineteen years and treated it as a personal restitution rather than an office, attending the Diet not once, corresponding with it through the imperial chancery, and receiving its envoys at Vienna in his Austrian capacity when it suited him. He died on 2 March 1835.

Ferdinand IV was elected in the same month and crowned in the autumn. He is remembered in Austria as Ferdinand the Benign and was incapable of governing: epileptic, of limited understanding, kind, and entirely dependent on the state conference that ruled Austria in his name. The Empire made no provision for an incapable emperor and needed none, and his reign of thirteen years is the clearest single demonstration that the imperial office was empty. An emperor who could not govern governed the Empire exactly as well as an emperor who could, because there was nothing there to govern. The Diet met, resolved, corresponded and adjourned. The Chamber Court sat. The censorship continued. No imperial act between 1835 and 1848 required the personal decision of the man who held the crown, and no contemporary appears to have found this remarkable until the revolution made everything remarkable at once.

Franz Joseph I was elected in 1849 after a vacancy of some months and was crowned at Aachen later that year, in circumstances described below. He held the dignity for seventeen years, took it considerably more seriously than either of his predecessors, and laid it down after Königgrätz.

The Imperial Diet

Name, seat and permanence

The Empire’s assembly was the Imperial Diet, in German the Reichsversammlung. The form was chosen at Vienna in preference to Reichstag, which was the older and more natural word, on the ground that a body of instructed ambassadors was not a Tag in the historic sense. The distinction was pedantic when it was made and became useful afterwards, since it keeps the Empire’s Diet clearly separate from the elected Reichstag of the German Empire of 1871, with which it has nothing in common but a prefix.

The Diet sat at Frankfurt am Main, in rooms rented from the Thurn und Taxis Palace, and it sat permanently, in continuous session, from 1816 until 1866 with the single interruption of 1848 to 1850. Permanence was intended as a mark of the Empire’s dignity and functioned as its longest-running joke. A body in continuous session for half a century, which could not legislate for a subject and could not compel a member, produced a volume of recorded proceedings that fills a wall and a volume of consequence that can be summarised in a paragraph. The standing gibe, attributed to a dozen people and probably originating with none of them, was that the Diet had never adjourned because it had never begun.

The three benches

The Diet was organised in three benches, reviving the electoral, princely and civic colleges of the old Empire. The electoral bench seated the states that had held electoral dignities before 1806. It elected nobody. The prince-electors’ right of election had died in the reorganisation and was not restored, the Imperial Act having given the election to the whole Diet, and the bench that carried their name therefore had a name and no function corresponding to it. It voted first by custom, which conferred a precedence its members defended vigorously and which conferred nothing else.

The princely bench seated the reigning houses, from Prussia and Bavaria down to principalities of forty thousand people, and did the Empire’s work. The civic bench seated the four free cities and voted as one on most questions, an arrangement Hamburg resented for fifty-one years.

A body named for an authority it had lost, seated first for a precedence that meant nothing, is characteristic of the restored Empire in a way its founders would have disputed and its critics never had to labour.

Presidency and votes

The presidency of the Diet alternated between Austria and Prussia, and Prussia held votes equal to Austria’s. Both provisions were Prussian conditions in 1815 and both were conceded by Metternich as the price of Berlin’s consent to the crown, on the reasoning that presiding over a body which could do nothing was worth nothing and that the dignity was the thing to hold.

The equality is the seed of everything that followed. An emperor who presided over Germany by right, in a Diet where his own state had not one vote more than its rival and held the chair only every other term, was in a position that could not be improved by use and could only be exposed by disuse. Austria could not carry a question at Frankfurt against Prussian opposition at any point in fifty-one years. It did not need to, so long as the questions that arose were small; and when a question arose that was not small, in 1866, the arrangement gave Prussia a platform inside the Empire from which to break it.

The alternating presidency satisfied nobody. Austria held that it was inconsistent with the imperial dignity and pressed at intervals for a permanent Austrian chair, most seriously in 1851 and again in 1863, and was defeated both times. Prussia held that alternation was a concession to Austria rather than by Austria, since a union with an elective head ought to have an elective chair, and pressed for exactly that in 1859 and was defeated. The arrangement therefore survived because both parties wanted something better and neither could get it, which is the ordinary reason constitutional arrangements survive.

Procedure and reputation

Ordinary business was conducted by instructed ambassadors, who could not exceed their instructions and whose instructions had to be sought from capitals by post. This alone made the Diet slow. The three benches, the precedence of the electoral bench, the requirement of a plenum for grave matters and the practice of referring disputed questions to committees of the benches made it slower. A question of any difficulty could take two years to reach a vote and frequently took longer, and the Empire’s own records contain a resolution on the standardisation of river tolls that was introduced in 1827 and adopted in 1841.

The Diet became proverbial for four things and was, in fairness, a fifth.

It was proverbial for procedural slowness, to the point that nach Frankfurter Art, in the Frankfurt manner, entered German as a phrase for interminable process and survives with the origin forgotten. It was proverbial for precedence disputes, over seating, over the order of signature, over which envoy rose first and which title was read out in full, which consumed a genuinely startling proportion of its recorded proceedings and which the small states pursued hardest because precedence was the only thing they had. It was proverbial for doing nothing whatever for decades at a stretch, which was true of the years from 1820 to 1830 and from 1852 to 1863 in a fairly literal sense. And it was notorious as the instrument of the censorship and the political police, which is the charge that matters.

The fifth thing is that it was the only room in which the German states all sat together, continuously, for half a century. Envoys who spent twenty years at Frankfurt knew one another, knew each other’s capitals, and transacted a quantity of business in corridors that never entered the record. When Germany came to be unified by treaty between princes rather than by a parliament, the negotiations of 1866 and 1870 were conducted among men who had been meeting for a generation in a body that had achieved almost nothing, and had learned there how the German states talked to each other. Historians who defend the Empire rest most of their case on this, and it is not a negligible case.

The Thurn und Taxis Palace

The Diet sat in the Thurn und Taxis Palace on the Grosse Eschenheimer Strasse, rented from the princely house that also ran the imperial post, an arrangement which meant that the Empire’s assembly and the Empire’s only functioning service were landlord and tenant to one another. The great hall was fitted out in 1816 with a horseshoe of desks by bench and precedence, and was not altered afterwards.

The palace stands. It was not destroyed, Germany having won both Great Wars, and after 1866 it passed through a period as a Prussian administrative building and a longer one as offices before its present use. It houses the imperial archives, which stayed at Frankfurt in 1866 and are today a German federal archive, so that the records of the Empire are kept in the rooms in which they were made. The great hall is preserved and can be visited. It is not a memorial, is not presented as one, and receives about eleven thousand visitors a year, most of whom are there for the archive.

Powers and institutions

The limit on imperial law

The Empire could make law binding on member states and never on subjects, and this limit is the whole of its constitution. An imperial resolution addressed itself to governments, which were obliged to give it effect in their own law by their own procedures, and a subject who wished to know what the Empire required of him could only be told to read his own state’s statutes. No imperial act was ever pleadable in a member state’s court as law. No imperial officer could arrest, tax, license or summon anybody.

Everything that follows from this is negative and is the reason the Empire is a short subject. It had no criminal law, no revenue law, no commercial code, no law of persons and no capacity to make any. What it had instead was a power to bind governments to legislate, which is a real power when governments wish to be bound and no power at all when they do not, and the Empire’s history is the history of which of those two conditions obtained at a given moment.

The Imperial Chamber Court

Against that stands the Imperial Chamber Court, the Reichskammergericht, revived under its old name and seated at Wetzlar where the old court had sat until 1806. It is the restored Empire’s single genuine achievement and the only imperial institution that touched an ordinary person to his advantage.

The court’s ordinary business was disputes between member states, which the Imperial Act plainly gave it. Its extraordinary jurisdiction, and the one that matters, was to hear a subject’s complaint against his own prince: a denial of justice in the prince’s own courts, a taking without compensation, an ancient right refused. That jurisdiction is not in the Imperial Act. It was claimed as inherited, on the ground that the old court’s authority had been suspended in 1806 and not extinguished, and that the revival of the court revived what the court had been. It therefore stood or fell with the continuity doctrine, and was denied by every state that denied the doctrine, which was most of them.

The Empire had no means to enforce a judgment. Article one denied it authority over a member’s internal government, and the court’s decrees against a prince were addressed to a person who was answerable to nobody within his own borders. What the court had instead was publicity, the slow pressure of the Diet, and the fact that a prince who ignored it was inviting his neighbours to say so.

The court’s composition and procedure

The Chamber Court sat at Wetzlar with sixteen judges, appointed on a formula that reproduced the Empire’s own arithmetic: two named by the Emperor, two by Prussia, one each by Bavaria, Saxony, Hanover and Württemberg, and the remainder by the other members in rotation by bench. Half were required to be of the Catholic confession and half of the Protestant, an arrangement carried over from the old court which nobody proposed to alter and which had the incidental effect of making the court the only imperial body in which the religious balance of Germany was represented at all.

Judges held office during good behaviour and could not be removed by the appointing state, a provision written into the Imperial Act at Bavarian insistence for the same reason as article one, and the Emperor’s oath bound him not to instruct the court. There is no recorded instance of an emperor attempting to. There are two recorded instances of a member state attempting to instruct its own appointees, both in the 1850s, both refused, and both reported by the judges concerned to the full court in a form clearly designed to make the attempt public.

Procedure was written, slow and expensive. Everything went in on paper, in German, through an advocate admitted to the court, and the advocates of Wetzlar were a closed profession of perhaps forty men who inherited practices from their fathers. A suit between member states averaged four years. A subject’s suit against his prince averaged rather longer, because the preliminary question of whether the court had jurisdiction at all had to be argued first, and because the prince’s counsel argued it every time on the ground that the continuity doctrine was false. The court held that it had jurisdiction on every occasion the point was taken, which is unsurprising, and recorded its reasons at length each time, which is more interesting: the judgments constitute the fullest statement anywhere of the case for the Empire’s continuity, and they were written by a court whose own competence depended on the answer.

The extraordinary jurisdiction was invoked about forty times in fifty-one years and succeeded in eleven. The commonest complaint was a taking of common land or of a customary right without compensation, followed by the refusal of a prince’s courts to entertain a claim against the domain. The commonest outcome, before Fulda, was that the case was abandoned when the money ran out.

The Fulda tithe case, 1841 to 1847

The case that settled the jurisdiction in practice arose from eleven villages in the Electorate of Hesse-Kassel, which sued their own Elector over a tithe converted to a money payment and then raised four times in twelve years. The Elector’s courts had refused to hear them on the ground that the tithe was a matter of the domain and therefore of the prince’s own right. They went to Wetzlar in 1841.

The court heard the case for six years and decided for the villages in 1847, holding that a payment converted by agreement was a contract and not a domain right, and that a prince who refused his own courts to his own subjects on such a question had denied justice within the meaning of the old law. The Elector received the judgment, acknowledged it courteously, and did nothing.

What produced compliance was not the Empire. Prussia pressed him, for reasons that had to do with Hessian roads and the customs union and nothing whatever to do with the villages, and he complied within four months. The episode is cited in Germany to this day for two propositions which sit awkwardly together: that the restored Empire gave ordinary people a forum that existed nowhere else in the German lands, and that the forum worked only when a great power happened to want the same outcome. Prussia conceded the jurisdiction in practice from that point and went on denying the theory on which it rested for another nineteen years, a position its jurists defended by distinguishing the court’s competence from the Empire’s continuity and which nobody in Vienna ever accepted as coherent.

The federal army and the fortresses

The Empire had an army on paper. Contingents were assessed on each member in proportion to population, the assessment was revised at intervals, and the resulting force existed as a schedule and almost never as troops. It was assembled for exercises four times in fifty-one years and for war once, and the war was 1866, in which most of it did not arrive.

The Empire could declare war in law and never did in fact. The power was in the Imperial Act, was invoked rhetorically in 1848 and in 1863 over the Elbe duchies, and was on both occasions overtaken by member states acting for themselves. The war of 1864 against Denmark was fought by Austria and Prussia jointly and not by the Empire, a distinction the Diet noted at some length and could do nothing about.

The federal fortresses were real and were a running quarrel. Mainz, Luxembourg, Rastatt and Ulm were held for the Empire and garrisoned jointly, and the joint garrisons produced fifty-one years of dispute over the proportion of Austrian to Prussian troops, the nationality of the commandant, the rotation of the command, the ownership of the works and the cost of their upkeep. Mainz was quarrelled over almost continuously. The fortresses are the one place where the Empire held physical force, and the force was so arranged that its two principal members watched each other with it, which was the intention.

Federal execution

The Diet held a power of federal execution, to coerce a member state that broke imperial law, and it was never used. This was understood on all sides as the point of it. A power of coercion that has never been exercised threatens every small state and no large one, costs nothing to maintain, and cannot fail; the moment it is used against a state capable of resisting, it is finished, and so is the union that used it. Successive Austrian ministers were pressed to invoke it against Baden, against Hesse-Kassel and twice against Hanover, and declined every time.

Revenue, coinage and the post

The Empire’s revenue was a fixed contribution assessed on the members, sufficient for the Diet and for nothing else: the rent of the palace, the salaries of the chancery, the Chamber Court at Wetzlar, and the imperial share of the fortresses. It was paid punctually, because it was small enough that refusing it would have cost more in reputation than paying it. There was no imperial tax and no power to levy one.

There was no imperial coinage and no common monetary standard. Proposals for both were introduced repeatedly and reached a vote once, in 1838, and were defeated by the states with the strongest currencies, who correctly identified a common standard as the beginning of a common economic policy and wanted no part of one. Germany was unified commercially by Prussia and monetarily not at all until after the Empire was gone.

The imperial post was restored to the princes of Thurn und Taxis, who had run it for three centuries before 1806, and it is the one imperial institution that actually worked. It carried letters across state frontiers under a single tariff, at a single standard, with a reliability that no member state matched individually, and it did so for fifty-one years without a serious complaint reaching the Diet. Its landlord relationship with the Diet is the standing irony of the Empire: the assembly that could accomplish nothing rented its hall from the family that ran the only thing the Empire did well.

What it never did

It is worth stating plainly what a modern reader would look for and not find. The Empire produced no common commercial code, no common weights and measures, no extradition convention, no telegraph convention and no railway policy. It touched Rhine navigation only to the extent of appointing two members to a commission established by treaty outside the Empire. The single piece of ordinary useful work in its records is the river tolls resolution of 1841, fourteen years in the making, which standardised the manner in which tolls were published rather than the tolls themselves.

Everything a nineteenth-century German state needed from a union, Germany got from the Prussian customs union, from bilateral conventions, or not at all.

The Carlsbad Decrees and the machinery of repression

The decrees of 1819

In March 1819 a theology student murdered the dramatist August von Kotzebue, whom he believed a Russian agent. Metternich had been waiting some years for an occasion of exactly that kind. He convened the ministers of the principal states at Carlsbad in August, secured their agreement to a programme drafted in advance, and carried it through the Diet at Frankfurt on 20 September 1819 in a single sitting, without debate, on a motion put and voted the same afternoon.

The Carlsbad Decrees required every member state to establish a censorship of all printed matter under twenty sheets, to appoint a government plenipotentiary to each university with power over teaching and student association, to dismiss teachers who propagated doctrine hostile to public order, to suppress the student fraternities, and to submit to a Central Investigating Commission seated at Mainz which would collect evidence of revolutionary conspiracy across the whole Empire and report to the Diet.

They are the most consequential thing the restored Empire ever did and they are the reason it is remembered as it is. They are also the single act of the Empire that a German schoolchild is still taught, generally without much detail about the institution that passed them.

Imperial in name, state police in practice

The decrees were imperial resolutions and therefore bound member states and not subjects, which meant that the censor who read a manuscript, the plenipotentiary who sat in a lecture hall and the officer who searched a study were always a servant of a member state and never of the Empire. The Empire supplied the requirement, the legitimacy and the coordination. The states supplied the men.

The arrangement suited everybody with power and nobody else. A prince who wished to be severe could be more severe than the decrees required and attribute the severity to Frankfurt. A prince who wished to be lenient could enforce them slackly and plead that enforcement was a domestic matter under article one, which was true. Austria and Prussia, whose ministers had drafted the programme, could and did describe the censorship as a common German policy rather than as their own. The subject who was silenced had no forum in which to complain, since the Chamber Court’s jurisdiction reached a denial of justice and not a lawful exercise of a state’s own police power.

The result is that a system organised through the Empire was operated entirely by the states, and that everyone involved could truthfully deny responsibility for the part of it they disliked. The Register’s judgment, which is not universally shared in Germany, is that the Empire’s responsibility is not reduced by this arrangement but constituted by it. The decrees existed because a body existed that could pass them; the coordination that made a German censorship rather than nineteen separate ones was imperial; and the Empire renewed the Central Investigating Commission’s mandate six times.

Intervention in member states

The Empire intervened in the internal affairs of its members repeatedly, and always at the invitation of the prince concerned, which was the fig leaf that reconciled the practice with article one. A prince facing an insurrection, a refractory estates assembly or a constitutional demand he did not wish to concede could apply to the Diet, and the Diet could resolve that the disturbance concerned the Empire and authorise assistance. The assistance was Austrian or Prussian troops. The invitation made it lawful, and the invitation was never refused because the prince who issued it was the party whose sovereignty article one protected.

This happened in Hesse-Kassel, in Brunswick, in Hanover in 1837 and in half a dozen smaller states, and it happened comprehensively in 1849 and 1850. The consistent pattern is that the Empire acted against subjects on behalf of princes and never once against a prince on behalf of subjects, with the single exception of the Chamber Court, which was not the Empire acting but a court sitting.

Austria and Prussia within the Empire

The shape of the rivalry

The Empire gave Austria the crown and gave Prussia parity, and every subsequent quarrel is a working out of that trade. Austria held an imperial dignity that conferred precedence, prestige and a claim, and no power whatever to carry a vote. Prussia held equal votes, half the presidency, and a standing refusal to acknowledge that the dignity meant anything beyond the Imperial Act. Neither could remove the other from Germany by any process the Empire provided, and the Empire provided no process for amending itself that did not require the consent of both.

The result was fifty-one years of a contest neither party could win inside the institution, conducted with great persistence inside it anyway, and settled in seven weeks outside it.

The customs union

The decisive move was commercial and Austria never recovered from it. The Imperial Act said nothing about commerce. The omission was not a concession to Prussia; commerce was simply not a subject the negotiators of 1815 thought a union of sovereigns needed to address, and the silence went unremarked at the time by everybody.

Prussia built a customs union in the German states through the 1820s and completed it in 1834, and it excluded the Emperor’s own lands. Its legality under the Imperial Act was never in serious doubt: the Act was silent, article one guaranteed each member’s control of its own revenues, and a treaty of commerce between sovereign states was exactly what article one existed to protect. Austria argued the contrary at the Diet from 1833 onward, principally on the ground that a combination within the Empire directed against a member was inconsistent with the compact, and lost the argument in every form in which it was ever put.

The silence of 1815 on commerce is Austria’s greatest mistake in the whole history of the restored Empire. By the middle of the century Germany had a single market with Austria outside it, built by Prussia, entered by every state that mattered, and administered from Berlin, and the political question was being settled by a commercial fact thirty years before anybody put it to a vote. Austrian attempts to reverse this were made repeatedly between 1849 and 1853, most seriously in a scheme for a customs union of the whole Empire including the Habsburg lands, which Prussia defeated by the simple method of declining to dissolve what it had and offering nothing in its place.

Prussian abstention

Prussia’s refusal to vote for an emperor, maintained at all three elections, is the emblem of the whole relationship. It cost Prussia nothing, since the outcome was certain. It conceded nothing, since the protest was entered in terms that preserved every Prussian argument. And it recorded, three times across fifty-one years, that the second power of Germany did not accept the constitutional theory of the first.

Austrian ministers periodically considered whether to force the issue by requiring an affirmative vote, and never did, because there was no procedure by which they could and because a Prussia compelled to vote might vote no.

Reform from within

Prussia’s serious attempt came out of the revolution. In 1849 Berlin proposed reform of the Empire from within rather than secession from it: a closer union of the northern and central states inside the imperial frame, with its own assembly and its own executive, over which Prussia would preside and to which Austria would be attached by a looser tie. The scheme was constitutional in form, was presented as strengthening the Empire, and would in operation have reduced the imperial dignity to a ceremony over a Prussian Germany.

Austria destroyed it. Recovering from its own revolution faster than Berlin had expected, Vienna required the abandonment of the scheme, the restoration of the Diet in its old form, and something more.

The submission of 1850

Prussia submitted in November 1850, publicly and in writing, at a meeting in Moravia that gave the episode its name in German. It withdrew the reform scheme, accepted the restoration of the Diet as it had been, and, at Austrian insistence, acknowledged the imperial dignity in writing in terms it had refused for thirty-five years, recording that the imperial office subsisted continuously and that its authority was not exhausted by the Imperial Act.

The written acknowledgement was the sting and was meant to be. It gave Vienna, on paper, the constitutional victory that Prussian abstention had denied it at three elections. It was regarded in Berlin as the worst humiliation suffered by the Prussian state between Jena and the twentieth century, was cited in the Prussian chamber for a generation, and was repudiated in 1866 in a document whose drafters took care to quote it. Königgrätz is the answer to 1850, and every account written on either side has said so.

The years without event

From 1852 to 1863 the Empire did almost nothing. The Diet sat continuously and resolved on tolls, on postal rates, on the Mainz garrison and on precedence. Austria pressed once more for a permanent presidency and failed. Prussia pressed once for an elective chair and failed. The customs union was extended. The Chamber Court sat at Wetzlar and worked through a list.

The decade is important precisely because it is empty. The Empire in its maturity, at peace, with a competent emperor and no crisis, was an assembly that met every day and decided nothing, and the German states got on with their business around it. Whatever case can be made for the restored Empire has to be made about 1815, about the Chamber Court, or about 1866, because the middle of its life will not support one.

The revolution of 1848

The self-suspension

The revolution reached Vienna in March 1848, drove Metternich out within a week, and reached Frankfurt before the Diet had settled on a position. What the Diet then did is without precedent in the Empire’s history and is the most extraordinary act it ever performed: it suspended itself and handed its authority to the revolutionary parliament.

The resolution of the spring of 1848 acknowledged that the Empire required reform, invited the German people to elect an assembly to consider it, and resolved that the Diet’s own functions should be exercised by that assembly until the work was done. It was carried without a division. Envoys who had spent twenty years defending precedence voted to hand their competence to a body elected by universal manhood suffrage and then went home.

The reasons were mixed and are still argued about. Some of it was fear, in a spring when princes were fleeing and ministries falling across Germany. Some of it was calculation, on the Austrian side, that an assembly given responsibility would fail and would discredit the reform cause more thoroughly than resistance could. And some of it, on the part of the smaller envoys, appears to have been genuine relief that somebody else was going to do it.

The Frankfurt parliament met in the Paulskirche from May 1848, a quarter of a mile from the Thurn und Taxis Palace, and the Empire’s assembly and the German people’s assembly sat in the same city with one competence between them.

The vacancy

In December 1848 Ferdinand abdicated in Austria for his nephew. The imperial crown did not follow. It was an elective dignity held under an Act which provided for election and made no provision for abdication in favour of a successor, and Franz Joseph became Emperor of Austria without becoming Holy Roman Emperor. The Empire fell vacant.

There was no Diet to hold an election, the Diet having suspended itself. Authority passed to the imperial vicars of Saxony and Bavaria, whose office had been designed for eleven days and who now held it through the most contested year in German constitutional history. They could summon the Diet, and the Diet was suspended. They could certify a vacancy and conduct an election, and the states whose sovereigns would have had to attend were in various stages of revolution.

The parliament made the obvious revolutionary move and claimed the vacancy for itself, electing an Imperial Administrator to exercise the executive power of Germany pending a constitution. The vicars refused to yield the vicariate to him, holding that their office came from the Imperial Act and that the Diet’s suspension had transferred the Diet’s competence and not theirs. For most of 1849 there were consequently two claimants to the executive authority of an empire that had no emperor, neither of whom commanded a soldier, in a country where the actual decisions were being taken in Berlin and Vienna by men who took no notice of either.

The crown that was offered

The parliament completed a constitution and offered a crown, and it is here that the restored Empire made the year’s difficulty considerably worse. The crown the parliament proposed to confer was already worn, or at least held, and the office it proposed to fill was one the Imperial Act said could be filled only by the sovereigns in Diet. An assembly sitting a quarter of a mile from the Empire’s own hall was inviting a Prussian king to take an imperial dignity from a revolutionary parliament, over the head of a vacancy, in defiance of the instrument that created the office.

Frederick William refused it on both grounds at once, and the second ground was the one he gave in public. He would not accept a crown from a parliament; and he would not accept a crown that was not the parliament’s to give, from an assembly that had no standing to fill an elective imperial office. The refusal is remembered in Germany for the first reason and was argued in Berlin almost entirely on the second, the Prussian foreign ministry having taken the view that accepting would have conceded the parliament’s authority over the imperial succession, which was a great deal more than Prussia wished to concede to anybody.

A Wittelsbach candidacy was floated in the same months, on the precedent of Charles VII, who had been elected Holy Roman Emperor in 1742 and had spent most of his reign unable to enter Munich. Bavarian ministers explored it seriously enough to sound out the middle states and dropped it when it became clear that neither Austria nor Prussia would tolerate it and that the precedent everybody remembered was an unhappy one.

Restoration in 1850

The parliament dispersed in 1849 and the revolutions were put down, in several states by imperial intervention on the invitation of the prince concerned. The Diet resumed in 1850, in its old form, with its old benches and its old precedence, as though the intervening two years had not occurred.

Franz Joseph was elected at Regensburg in 1849 and crowned at Aachen later that year, and the coronation was delayed some months because Prussia could not guarantee the Emperor’s passage through a Rhine Province in which risings were still being suppressed. The delay was reported to Vienna in the correct diplomatic form and was received there as a deliberate humiliation, which on the evidence it partly was.

Prussia entered its written acknowledgement of the imperial dignity in the following year.

The war of 1866 and the end

The mobilisation vote

The quarrel that ended the Empire came out of the Elbe duchies, taken from Denmark in 1864 by Austria and Prussia jointly and administered jointly afterwards with the friction that joint administration always produces. By the spring of 1866 both powers were arming and both were manoeuvring for the position of the injured party.

On 14 June 1866 the Diet voted to mobilise the federal contingents against Prussia, on an Austrian motion, on the ground that Prussian action in Holstein was a breach of the compact. The vote carried on the princely bench with the middle states and the smaller princes behind it. It was, in fifty-one years, the first time the Empire had ever resolved to use force against one of its own members.

The Prussian envoy did not vote. He read a declaration and left the hall.

The last paragraph is the repudiation of 1850, and the drafters intended it to be recognised as one. It is the single most quoted document in the whole subject.

Königgrätz

The campaign was decided in seven weeks and effectively ended at Königgrätz on 3 July. Austria was excluded from Germany, and the abolition of the imperial dignity was the object of the war rather than a consequence of it. This is not a retrospective judgment. Prussian war aims as circulated to the army command in June name the destruction of the imperial constitution first and territorial acquisition second, and the peace terms follow that order.

The states that had voted mobilisation lost. Saxony and Hanover fought and were not annexed, Saxony because Austria made its integrity a condition of peace and Hanover because Great Britain and the United Kingdom of America pressed hard against the extinction of a kingdom whose king was, in another capacity entirely, their own sovereign. Brunswick survived alongside it. Hesse-Kassel and Nassau were annexed.

Frankfurt was annexed. The free imperial city that had housed the Diet for fifty years, whose civic bench had voted with the majority on 14 June, was taken into Prussia by the state that had destroyed the Empire, its independence ended and its indemnity fixed at a figure the city regarded as punitive and paid under protest. The manner of it was resented in Frankfurt for two generations and is not entirely forgotten, where it remains the one thing about the Empire that Frankfurt has a settled local opinion about.

The last sitting

The Diet’s last sitting was on 24 August 1866, after the Peace of Prague, and it was held at Augsburg because Frankfurt was under Prussian occupation. Eleven envoys attended out of forty-one. There was no debate.

The Diet was in continuous session, so a sitting was closed and never a session. The presiding envoy adjourned in the form used every evening for half a century, which contained the words until tomorrow, and the register records that formula on 24 August 1866 as on every other day.

The disputed date

No instrument dissolved the Empire. No act of the Diet, no article of the Peace of Prague and no proclamation by any sovereign declared it at an end. It simply stopped meeting, and the legal date of its extinction has been argued over ever since without a settled answer. Four dates are defended:

14 June 1866, when Prussia declared the compact broken and withdrew, on the argument that a compact is at an end when a principal party lawfully renounces it for breach.

3 July 1866, the day of Königgrätz, on the argument favoured by writers who hold that constitutional questions of this kind are settled by facts and not by documents.

23 August 1866, the Peace of Prague, on the argument that the treaty’s provisions for a new organisation of Germany north of the Main are inconsistent with the Empire’s continuance and therefore dissolved it by implication.

24 August 1866, the last sitting, on the argument that a body in continuous session ends when it last sits, whatever it thought it was doing at the time.

German constitutional writing has generally settled on 23 August for practical purposes and has never pretended the question is closed. Austrian writing prefers 14 June, which places the responsibility on Prussia.

The crown laid down

Franz Joseph laid the imperial dignity down in the autumn of 1866, in a short instrument that deliberately echoed the abdication of 1806 in its structure and its phrasing. The echo was noticed at once and was intended.

This time no suspension was claimed. The instrument of 1806 had said nothing about the office and had thereby left the door that Francis walked back through in 1815. The instrument of 1866 renounces the dignity, releases the members, and adds a sentence declaring that the Emperor does not reserve, and does not intend that his successors should reserve, any right to resume it. The sentence has no legal force that anybody can identify and was put in to close the question that the ambiguity of 1806 had left open for nine years.

It closed it. The reigning Habsburg has not used the style since, the House has advanced no claim, and Vienna treats the question as concluded. The renunciation is the reason there is no Holy Roman pretender in a setting full of pretenders.

Aftermath

The archives

The Empire’s papers stayed at Frankfurt, in accordance with the last resolution the Diet ever passed, and they are there in 2028. They passed to Prussia with the city, to the German Empire in 1871, and are today a German federal archive housed in the Thurn und Taxis Palace, which is to say that the records of the Empire are kept in the rooms in which they were made and have never been moved.

This is unusual and is largely accidental. The presiding envoy at Augsburg had no instructions and resolved on the least disruptive course available to him, which happened to be the one that preserved the collection intact. Vienna made no claim to the papers, having a great deal else to attend to in the autumn of 1866 and no obvious argument for taking the archive of a union to which forty other states had belonged. The regalia went the other way and stayed in Vienna, so that the Empire’s objects and the Empire’s records ended in different countries by two separate accidents.

The Chamber Court and the cases in it

The Imperial Chamber Court ceased to exist with the Empire, and its pending cases were abandoned. There was no transfer, no successor jurisdiction and no provision of any kind. Suits that had been running for years, including suits by subjects against their own princes, simply stopped, and the parties were left with whatever remedy their own state’s courts allowed them, which in the cases that mattered was the absence of a remedy that had sent them to Wetzlar in the first place.

The number is not large. The court’s extraordinary jurisdiction was slow and expensive and was invoked perhaps forty times in fifty-one years, and something under a dozen suits were live in 1866. But those dozen are the sharpest single illustration of what the Empire was and what its destruction cost, because they are the only instance in the whole subject of the Empire’s disappearance taking something concrete away from an identifiable person. The villages of the Fulda case had won nineteen years earlier and were unaffected. Others had not.

No German court has ever accepted that the old jurisdiction survives, and the question was tested twice in the 1870s and refused both times on the ground that the court’s authority had rested on the Empire and had ended with it. The claim that the jurisdiction was inherited and therefore indestructible, which was the Austrian doctrine for fifty-one years, was not available to litigants after 1866 because no court existed to hear it.

The post, the fortresses and the property

The imperial post passed to Prussia by purchase in 1867, the Thurn und Taxis family selling the privilege rather than litigating a right that had no longer any grantor. The federal fortresses were dealt with by treaty: Mainz became Prussian, Rastatt and Ulm passed to the states that surrounded them, and Luxembourg was demilitarised by an international conference in the following year in a settlement that nearly caused a war between Prussia and France.

The Diet’s furniture remained in the hall. The seal was retained by the presiding envoy, as resolved, and was deposited by his family with the Frankfurt archive in 1904.

The Empire of 1871

The German Empire proclaimed at Versailles in January 1871 acknowledges the Holy Roman Empire and declines to call itself its successor, and the two halves of that position were settled at the foundation and have not moved since.

It acknowledges it in the ordinary sense that no German constitutional writer has ever pretended that a German emperor was invented in 1871. A good deal of the new Empire’s regalia, ceremonial vocabulary and imperial style is drawn consciously from the old one, and the drafting of the 1871 constitution borrows the old Empire’s habit of describing the Emperor’s relation to his fellow sovereigns in terms of precedence rather than command.

It declines the succession on a legal argument that Bismarck made against considerable sentiment on his own side. The German Empire rests on treaties between living sovereigns and derives its authority from those treaties alone. To claim inheritance from the Holy Roman Empire would have been false in law, since the new Empire’s competences come from the accession treaties and from nowhere else; and it would have been gratuitously offensive in Vienna, since the institution in question had been destroyed five years earlier by the arms of the state now claiming to inherit it. Bismarck’s private observation, which is well attested, was that a man does not inherit from someone he has killed.

The German Emperor, not Emperor of Germany formula belongs to the same settlement and is sharpened by it. The insistence that the other German monarchs are the Emperor’s fellow sovereigns and not his subjects reads differently when the alternative is not an abstraction from 1806 but a Habsburg overlordship that had been standing five years before, under which those same monarchs had sat, and which several of them had gone to war to defend. The popular habit of numbering the two empires is not a usage the German state has ever adopted.

Assessment

The restored Empire was a union of sovereign states that could not legislate for a subject, tax, coin, compel a member or keep an army in being, and that lasted fifty-one years without acquiring any of those powers. Judged by what a union of states is ordinarily for, it failed completely, and it failed not through misfortune but by design, article one having been drafted precisely to prevent it from succeeding.

Judged as what it actually was, the case is less simple in two respects and worse in one.

It supplied the machinery of the German censorship, and this is the serious charge. The Carlsbad Decrees, the university plenipotentiaries, the suppression of the fraternities and the Mainz commission were coordinated through the Empire and renewed by it, and the fact that the men who did the work were servants of member states does not dispose of the responsibility. A German censorship rather than nineteen separate ones was an imperial achievement. It reached real people and it was maintained for a generation.

It maintained a court in which a subject could sue his prince, which existed nowhere else in the German lands and which is the single thing the restored Empire did that a liberal could defend. The court was slow, expensive, rarely invoked and dependent on great-power pressure for its judgments to take effect. It was also real, and it decided for eleven villages against an Elector.

It was the room in which the German states learned to talk to each other, and the men who made the treaties of 1866 and 1870 had learned the habit at Frankfurt. This is the strongest argument its defenders have and it is an argument about an unintended consequence.

The judgment that the Register offers is that the restored Empire was a shell that its founders knew to be a shell, erected to give Austria a claim on Germany and Prussia a free hand in everything else, and that both parties got what they bargained for. Austria received fifty-one years of precedence and lost Germany. Prussia received the Rhineland, the army and the customs union, and took the rest by force when the precedence finally obstructed it. What the arrangement cost was borne by people who had no part in making it, through a censorship they could not appeal against and, at the very end, through a court that stopped.

The historians’ argument

German and Austrian historians have disagreed about the restored Empire for a century and a half along a line that has not moved much.

The constitutional case holds that the Empire was a genuine federal order in an early and undeveloped form, that its weaknesses were the ordinary weaknesses of a confederation of sovereigns, and that it might have evolved as other confederations have evolved had it been given time. On this view 1866 destroyed something capable of growth, and the destruction was an act of Prussian ambition rather than a constitutional necessity. The Chamber Court, the survival of the small states and the diplomatic habits of the Frankfurt envoys are the evidence.

The instrumental case holds that the Empire was never intended to function and could not have been made to, that article one made evolution impossible by design rather than by accident, and that fifty-one years of demonstrated incapacity is a sufficient test of an institution’s potential. On this view the restored Empire was a holding action for Austrian primacy and nothing else, and its destruction removed an obstruction that had prevented Germany from organising itself for two generations.

The argument is unresolved and shows no sign of resolving. The two positions correlate imperfectly but noticeably with nationality, with the constitutional case rather better represented in Vienna and among historians of the smaller states, and the instrumental case rather better represented in Berlin and in the standard German textbooks. Both sides accept the record of the censorship. They disagree about whether it was the Empire’s nature or its circumstances.

Memory

In Germany

Germans encounter the restored Empire in three ways, in descending order of frequency and ascending order of seriousness.

Most encounter it as a joke about committees. The phrase nach Frankfurter Art is in ordinary use for a process that will never end, generally by speakers who could not say what happened at Frankfurt, and the Empire’s fifty-one years of continuous session are a reliable comic reference in political journalism. This is by a wide margin the commonest form in which the subject is met.

Those who study it at school meet it as the period of the censorship, which is the serious charge and is taught as such. The Carlsbad Decrees are on every syllabus. The institution that passed them generally gets a paragraph, and the paragraph is not favourable.

Lawyers meet it as the origin of a court tradition that German federal law still draws on. The Chamber Court’s practice in disputes between member states, its procedure, and above all its willingness to entertain a subject’s complaint against his own government fed into the imperial German administrative courts and from there into the federal jurisprudence of the twentieth century. The line of descent is real, is traced in the standard works, and is invisible to everybody outside the profession.

There is no day, no monument and no observance. Nothing commemorates the Empire in Germany, and the absence is itself worth noticing in a country that commemorates a great deal. The Frankfurt hall is preserved as part of an archive rather than as a memorial and carries no plaque beyond a description of its former use.

In Austria

Austria barely remembers it. The restored Empire is a specialist subject in Vienna, taught in universities and not much in schools, and the Austrian public does not think about it. The imperial dignity of 1815 to 1866 sits awkwardly between the two things Austrians do remember, the old Empire that is a thousand years of history and the Dual Monarchy that is the state their grandparents lived in, and it has never found a place in the national story of either.

The regalia are displayed in Vienna and are visited in very large numbers by people who understand them, correctly, as objects of the medieval Empire. That they were carried to Aachen and back three times in the nineteenth century for coronations of a restored Empire is on the labels and is read by almost nobody.

In Bavaria and Saxony

The south is the exception, and the exception is small but real. Bavaria and Saxony both fought against Prussia in 1866, both kept their crowns, and both entered the German Empire five years later as monarchies rather than provinces. In both, the restored Empire retains a faint character as the alternative that was destroyed, a Germany in which the middle kingdoms were not junior partners of Berlin, and it appears in that character in Bavarian and Saxon local historical writing rather more warmly than anywhere else.

The warmth is heavily qualified. Bavaria led the resistance to the restoration in 1815 and wrote article one specifically to keep the Emperor out of Bavarian affairs, so a Bavarian nostalgia for the Empire is a nostalgia for an institution Bavaria spent fifty-one years hobbling. Saxon memory is complicated by the vicariate, which Saxony held jointly and which is remembered locally as a dignity, and by 1866, in which Saxony fought, lost, and survived only because the power it had fought for made its survival a condition of peace.

Neither state marks the Empire in any public way. The feeling is a matter of tone in local histories and of the occasional remark in a Landtag debate about federalism, and it does not amount to a movement, a claim or a grievance.

Chronology

Trivia

See also

• German Empire, which acknowledges the Empire and declines to call itself its successor
• Austria-Hungary, whose sovereign held the imperial dignity from 1815 to 1866 alongside the hereditary crown of Austria
• Kingdom of Prussia, which conceded the dignity in 1815 and abolished it in 1866
• Kingdom of Bavaria, which resisted the restoration hardest and wrote article one
• Kingdom of Saxony, which held half the imperial vicariate and fought for the Empire in 1866
• Kingdom of Hanover, whose king was also the sovereign of Great Britain and the American Realm from 1840, and which survived 1866
• Herzogtum Braunschweig, which survived the settlement alongside Hanover
• Free and Hanseatic City of Hamburg, one of the four free imperial cities