Second Post on Chapter Two
The Practice of Royal Commissars until the Eighteenth Century
The chapter is divided into two sections, Ecclesiastic and Royal Commissars and Excursus on Wallenstein as Dictator, at this point I am dealing with the first section only.
The papal use of legates/commissars was paralleled by the use of such officials by the state during the thirteenth century. In France, such people were employed by Louis IX (the crusader king often known as Saint Louis, who also played a major role in reinforcing the role of the monarchy as can be seen in Montesquieu’s The Spirit of the Laws), while in Germany and England they were employed by the estates, i the name of the monarchy. Estates as in the assemblies of the estates of clergy, aristocracy, burgers/merchants. In England this is known as Parliament, but the use of the term ‘estates’ with reference to Medieval England seems appropriate as Parliament was essentially a gathering of those three groups, though with nobility and clergy grouped together in the House of Lords, and later becoming dominated by the burgher/merchant House of Commons component. The grouping of England and Germany together is interesting as it shows a period of common practices with regard to English to common law (judge made law accumulating over time as a series of cases that provide precedents for future judgements), its German equivalents and representative institutions. What Schmitt refers to is the way in which the move towards Roman law and a centralised states is common to England, France, and Germany, while the great role of ‘states’ is common to England and Germany (at that time a complicated patchwork of many effectively sovereign entities within the Holy Roman Empire). Saint Louis (the usage is so well established in France over the centuries, it can be found in Proust, for example, I feel rather attached to it myself) appointed commissars to deal with the complaints of commoners at a local level, so enhancing the interventionist role of the royal state. In fourteenth century Italy, the secular and church use of commissars combined in the city of Rome, where of course the Pope served as the civil power (a situation which continued until Italian unification in the nineteenth century).
Schmitt then moves into a discussion of Germany, which has the complication jumping about across the period from the fourteenth century to the seventeenth century. The reason for this is presumably because Schmitt wishes to give a to some degree unified account of the evolution of Germany during that period, which is an evolution from the medieval world to the early modern world that has particularly German features that perhaps sum up what was going on across the continent, at least outside Russian and Ottoman lands.
At the beginning of this period the oddly named Holy Roman Empire, so called because the original figure in this role Charlemagne (though his title was Emperor of the Romans) was crowned in Rome by the Pope in 800, so taking both the ecclesiastical and secular aspects of the Roman imperial legacy, in a state which at that dominated Italy, but was centred on what is now Germany. By the fourteenth century the power of the Emperor was more limited than it had been in the twelfth century and the Emperor was appointed by Electors (a very small college of princes), so at least in principle sovereignty could not passed automatically down a dynasty.
A dominant dynasty did emerge in the fifteenth century, the Habsburgs who continued to supply Emperors until the Empire was dissolved in 1806, and the family took the title of Emperors of Austria. The later title confirmed what was going on from the time the Habsburgs took power. They were hereditary rulers of Austria, with strong powers over dynastic territories which spanned the border of the Empire. They were absolute rulers of a Habsburg Empire and limited rulers of the Holy Roman Empire of the German Nation (as the empire became known in the sixteenth century).
Their powers, according to Schmitt, included a monopoly on outlawing. Outlawing was a major medieval form of punishment, which provided a formal right to harm and seize the property of those designated in such a way. They had to leave the territory in which they had been outlawed, or face the likelihood of death without the benefit of any further legal process. As Schmitt suggests, the Emperors were a bit half-hearted in implementing outlaw status thought, in that it could be legally challenged (surely undermining the principle of outlawing), through the complex procedures that bound the Emperor, the proclamation had to be issues in the various entities within the Empire according to local laws and customs. and Emperors often withdraw the status under a rubric of mercy and humility, which presumably referred to lack of absolute power in reality. Outlawing was on the boundaries between internal criminal law and war as an instrument of state policy, since those outlawed were defined as enemies, as if they were states at war with the sovereign power concerned, and might unify in a seizure of sovereignty, or provide leadership for the disaffected in such a movement. We can see this as an example of how legal sovereignty is part of a concrete unity of sovereignty in action with the instruments of state violence.
As Schmitt also points out, the estates became weaker and an absolute state emerged in Germany, which can only be a reference to the strengthening of princely sovereignty in the composite units of the Empire including the Habsburg dynastic state. The already limited power of the Emperor was further weakened by the sixteenth century Reformation,which led to many constituent states of the Empire adopting Protestant Christianity rather than the Catholicism of the Emperor. The last phase of that struggle was the Thirty Years War of 1618-1648, which involved most European powers so that huge armies devastated German and Habsburg lands.. Schmitt refers to the commissary powers of the two major Habsburg/Catholic League generals of the time, Counts Tilly and Wallenstein. This enables a further discussion of commissary powers, which they both had, and had such special powers in civil and military administration still left the monarch with the final power, so that exceptional powers exercised by commissars served monarchical absolutism, which Wallenstein himself welcomed, apparently inclined to take the line that he would welcome the Estates rising up against royal power so that he could crush their power.
The outcome of the Thirty Years war was that Habsburg power in central Europe was enhanced, and Protestantism was pushed back, but Protestantism was not destroyed. It remained in large parts of Germany and the Catholic monarchy of France welcomed that if it limited the power of Austria. So it is a process of consolidation of dynastic-national power in which international relations is detached from religious concerns, that is there was a major step towards a Europe of secular nation state politics. Schmitt gives some details of the process with regard to Commissary powers, so what I have done in this part of the post is really explain what the context is, and what Schmitt is saying about later Medieval and Early Modern Europe, for which the German and Habsburg lands provide the major focus.
(The above refers to:
From the origin of the modern concept of sovereignty to proletarian class struggle
Translated by Michael Holzel and Graham Ward
Cambridge: Polity Press, 2014)