Sixteenth Century Studies Conference 2003. Section 108: Conflicting Jurisdictions in Early Modern Germany. Sixteenth Century Studies Society.
Reviewed by Thomas Robisheaux
Published on H-German (December, 2003)
Disputes over legal jurisdictions were so common, so pervasive, that they have long been considered a structural feature of politics and the law in the Holy Roman Empire right down to its end in 1806. The problem long ago attracted the attention of constitutional, political, and legal historians, but these disputes provide a wealth of material for the social historian as well. Of course, the tenor, importance, and consequences of these conflicts depended on time and place, and these three case studies were well chosen to explore three transitional times of the sixteenth century. One paper explored the early sixteenth century and the legal disputes between civic and ecclesiastical authorities, a critical context for our understanding of the urban Reformation. A second opens up a window onto the political flux in the empire in the wake of Charles V's victory over the Smalkaldic League; in 1550 a new balance between emperor, empire and territorial authorities seemed possible, as Janis Gibbs suggests in her paper on Cologne. A third paper turns to the unsettled and polarized climate of the 1570s and 1580s as a Protestant city and small Catholic territory squared off over the right to mobilize and discipline a village militia. <p> In the first paper, Beth Plummer examined incidents of clerical sexual misconduct as they appeared in legal disputes between bishops and civic authorities in the early years of the Reformation. These disputes reach back into the late Middle Ages, of course. Scholars going back to Bernd Moeller have seen in these disputes evidence of the roots of urban civic reform. Plummer's paper showed us the lengths to which civic authorities went to punish clerical moral misconduct, giving us a vivid impression of the legal and political obstacles that stood in their way. These obstacles seem to have made a piecemeal approach to the problem inevitable, but often effective, even if they were slow and only indirectly addressed the real issues at hand. Her paper also opened up an intriguing insight into the clergy involved in these disputes. Many of these clergymen seem to have been able to open up a wider space of social action for themselves by exploiting the wrangling over jurisdictions between civic and ecclesiastical authorities. In other words, cunning clergymen, like clever peasants, knew how to exploit the empire's complex overlays of jurisdictions and may have understood how to play one power off against another in doing so. <p> Several questions involving the law came to mind regarding Plummer's arguments. What kinds of legal arguments were convincing when civic authorities challenged an ecclesiastical jurisdiction? In the first example she examined, the city of Augsburg referred to the dangers that the clergyman posed to the safety and peace of the imperial highway, an apparent reference to the jurisdiction the city exercised over the imperial highways within its territory. Did claims to higher, that is, imperial rights and privileges win out over claims of exemption from local civic jurisdictions? How did a city breach an ecclesiastical legal jurisdiction and then make the action seem traditional, customary and just? Her paper therefore raised questions about the wider exercises and interpretations of the law among civic authorities at the turn of the sixteenth century. Who were the men behind these aggressive legal tactics? Were they part of a new generation of civic jurists and leaders schooled in Roman law? The argument is commonly made that a new generation of humanists opened up new possibilities of reform by the 1520s, but I wonder if one might make a similar argument for civic leaders who tended to approach civic reform through new understandings of the law. Did their practices draw from the <cite>ius commune</cite> tradition in ways that differed from earlier generations of civic leaders? One can see their engagement as morally and politically motivated, but I wonder whether these cases do not also reflect a stronger tendency to see old rights and privileges as "irrational" obstacles to the resolution of human conflicts through a "rationally" administered law. <p> Gibbs's paper showed how a seemingly small conflict, when carefully analyzed, can illuminate a much wider field of power politics. In this case, the problem involved a long-standing dispute between the prince-archbishop of Cologne and the civic authorities of the city. The case reminds us how critically important the exercise of higher justice was to governments. The right to try criminal cases in higher courts not only represented power over the lives and limbs of citizens and subjects, but it was also one of the key means by which early modern rulers all across Europe built up an infrastructure of state authority over towns and other communities and people. This was no trivial dispute. Even though we cannot judge precisely from the material presented in this paper the part the dispute played in the long history of the relationship of the city to the prince-archbishop, we can be sure that no side could afford to step aside from an exercise of justice as charged with potential significance as this may have been. <p> My comments and questions were directed at understanding the wider contexts for this dispute. I wonder, first of all, if this dispute might offer us an opportunity to understand an urban topography of power in that brief, stunning moment after Charles V had defeated the Smalkaldic League and before his humiliation in the Princes' War in 1552. These years, it is clear, were full of flux for the free and imperial cities of the empire. We know about the agony these years caused in other cities as the emperor attempted to exploit the victory and impose a new balance between emperor, empire, and imperial cities. We also know from art historians just how critical imperial entries and visits were to imperial cities. Gibbs was asked to comment on this one dispute within the wider field of power when Charles entered the city. How did the presence of the emperor alter the exercise of criminal justice? A second question involved a comparison with other conflicts between prince-bishops/prince-archbishops and their cities. Cologne was not the only city to have difficulties with its prince-bishops. One thinks of Trier, Mainz, Speyer, Wuerzburg, Bamberg, and so on. Gibbs was also asked what comparisons with these other cities and disputes can show us. The final paper by Tlusty explored the dispute between a Protestant city and a small Catholic territory over the right to mobilize and discipline a village militia. Tlusty argued that custom and an old village ordinance won out over innovation as the imperial city of Rothenburg o.d.T. was forced to return jurisdiction over the militia to the ecclesiastical territory of Komburg. She also argued that the dispute helps us view the "military revolution" in a new light. One innovative insight of her paper was her effort to find evidence about villagers' conceptions of their own customs and laws, and this insight helps us see that the clash did merely occur between two governments, but indeed ran right through the village community as well. The great cache of sources created for the Imperial Chamber Court dispute allows her to explore in a rich way not only villagers' own notions of custom and right practice, but their disquiet over their own violations of these customs. <p> My challenge to Tlusty was twofold. I asked whether this dispute could be placed within a wider regional or even imperial context at the time? How often were jurisdictional conflicts beginnings to shape regional disputes in these splintered territories of the Swabian-Franconian borderlands by the 1570s, 1580s and 1590s? My impression (and it is only an impression) is that challenges were multiplying in these years as old conflicts were re-contextualized through the polarized religious confessional politics of these years. But I have the impression that the law also tended to mitigate against confessionalizing legal disputes at the same time. I would also like to know more about the jurists involved in the Rothenburg o.d.T. and Komburg case. Who were they? Where were they educated? How did they view the law and territorial rights? Can we discern patterns at work in their interpretation of the law? <p> I made one final comment about the historian, the law, and legal records. Legal disputes over jurisdictions provide us with gold mines of information about politics, religion, and society in the Old Empire. Especially when cases went to the Imperial Chamber Court or the Imperial Aulic Court, sizable, rich and complex dossiers were put together. How we, as historians, view these documents is important. Many historians use these legal records as "windows" onto problems or issues that interest us within the society: clerical sexual conduct, city-bishop relations, militias and notions of popular justice. But are these documents really "windows"? This depends on the understandings and assumptions that we bring to these documents as historians. What if we were to turn our view around, and look at these document another way? What happens when we treat these documents as evidence concerning the practices, uses and interpretations of the law? How did jurists compose these legal documents? What legal concepts guided them as documents were drafted? Indeed, who were the jurists and magistrates who drafted them? These men are the silent, but omnipresent actors in all of these disputes. Each of these documents represents a move on a chessboard, a carefully considered step in a contest. It seems important that we also consider carefully the jurists themselves as they took up the law as an instrument of power in highly contested and fluid circumstances. Sixteenth-century law was not static and absolute: it was plastic, contested, fluid ... a dynamic instrument of power. We currently have a political and social history of the Old Empire that uses the law and legal documents. To match it we need a social history of the law, as well. <p>
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Citation:
Thomas Robisheaux. Review of , Sixteenth Century Studies Conference 2003. Section 108: Conflicting Jurisdictions in Early Modern Germany.
H-German, H-Net Reviews.
December, 2003.
URL: http://www.h-net.org/reviews/showrev.php?id=15249
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