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Religious grievances

[1648 his soldiery replaced the Imperialist garrisons in his fortresses of Ehrenbreitstein and Hammerstein.

While the loose connexion between the United Provinces and the Empire was allowed to lapse in silence in view of the recognition by Spain of the independence of what still formed part of the Burgundian Circle, the independence of the Helvetic Confederation of the Thirteen Cantons was explicitly recognised in the Treaties of both Osnabrück and Münster.

It remains to summarise the efforts made in the Peace of Westphalia to deal with the religious and political difficulties, for the most part so repeatedly and persistently brought forward as "grievances" at the Diet and other meetings of Estates of the Empire, that had long distracted and disturbed its life, and had materially contributed to bring about the War. The gravest of these difficulties dated back in their origin to the Reformation; nor could any settlement of them be reached unless they were regarded as radical and treated accordingly. The peace propositions of the Swedish plenipotentiaries demanded that all mutual grievances between the Catholic and Protestant Estates should be entirely uprooted (funditus exstirpentur). As representing a Catholic Power, the French plenipotentiaries were precluded from professing the same purpose; and thus it was only at Osnabrück that the religious grievances were discussed, and the principle of their being ultimately met by a reunion of the religions was once more asserted. The endeavours of the Imperial plenipotentiaries to refer the religious grievances to the Diet broke down, and to the exertions of Sweden, whose services to the preservation of Protestantism did not come to an end with the career of Gustavus Adolphus, are to be ascribed such results as were on this head reached in the Peace of Westphalia.

The Treaty of Passau (1552) and the Religious Peace of Augsburg (1555) were acknowledged as fundamental laws of the Empire, but were here broadened in their application by the important provision, that among the "adherents of the Augsburg Confession" should be held to be included those who proposed the "Reformed" (Calvinist) form of faith. The Elector of Saxony, consistent to the last, protested against this article. So far, however, was it from implying any general religious tolerance, that the same Treaty of Osnabrück expressly directed that no other religion except those expressly mentioned should be allowed in the Empire-a declaration not of course intended to prevent any particular Government from granting such protection as it might think fit to individual adherents of other forms of religion.

Sweden had originally proposed that, in view of the manifold grievances on both the Catholic and the Protestant side, the state of possession which had existed in the year 1618 should be restored and made perpetual in the case of ecclesiastical foundations and property of all kinds, and in that of all other disputed matters admitting of being

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The religious settlement

411

so regulated. This proposal represented so enormous an advance upon the Prague settlement, which had fixed the year 1627 for the same purpose and allowed a period of possession from that date onwards of not more than forty years, that, after prolonged discussions and determined Catholic resistance, the date of January 1, 1624, was, on the motion of Electoral Saxony, definitively adopted. It was favourable to the Protestants, as entirely excluding the operations of the Edict of Restitution, and even some changes effected by Tilly; on the other hand, a large number of immediate Church foundations were thus left to the Catholics.

Exclusively, then, of those ecclesiastical foundations-chiefly secularised sees-specific dispositions as to which formed part of the satisfactions or compensations— all immediate foundations and estates, whether archbishoprics, bishoprics, abbacies, convents or other, were to remain in the undisturbed possession of whichever of the religions had held them on January 1, 1624, until by God's grace the religious disunion should have an end. If the occupant of such a foundation changed his religion, his occupancy would ipso facto cease. In Cathedral Chapters, if at that date they had been composed partly of Catholic, partly of Protestant members, the same proportion was to be permanently maintained. Thus the knot of the old problem -the question of the validity of the reservatum ecclesiasticum- had been suddenly cut; but practically, so far as the great debatable land of the west and south-west was concerned, the decision was wholly in favour of the Catholics. A final stop was put upon the spread of Protestantism in the Empire by means of conversions in high places. The same rule of date applied to mediate spiritual foundations mainly convents; no religious Order was to be admitted into a convent hitherto held by another, except in the case of its having become extinct in loco; and even then no Order founded since the Reformation was to be introduced a stipulation palpably directed against the Jesuits.

Of deeper interest to us, because of its connexion with the principle of tolerance which in this generation was only beginning to dawn upon a few minds, was the problem of the public and private exercise of their religion by subjects who professed a form of faith different from that of their territorial sovereign. The declaration in the Peace of equality between Catholics and Protestants was restricted by the addition "in so far as is in accordance with the constitution and laws of the Empire, and with the Peace itself"; and it had to be reconciled with the right of determining the religion of his territory (the jus reformandi) granted by the Religious Peace of Augsburg to every territorial lord or immediate estate, while to subjects who dissented there remained the alternative of emigration.

The Lutherans and the Reformed, whom the Catholics left to settle their own practice on this head, agreed that, without prejudice to liberty

412

Provisions as to public worship and toleration [1648

of conscience, existing compacts should continue in force where Lutherans were actually under a Reformed territorial ruler, and vice versa; and that in future cases the ruler, while appointing Court-preachers of his own religion, should not interfere with his subjects' exercise of their religion, or with the religious condition which had obtained in churches, schools, universities, etc., in his dominions at the time of the Peace. The Lutheran lands about to come under the rule of the Elector of Brandenburg were no doubt kept specially in view.

For Catholics and Protestants living under rulers of the opposite faith, the conditions of public and private religious worship, of the constitution of consistories, and of the patronage and tenure of churches, convents, hospitals, etc., which had obtained at the most favourable date in the year 1624, were to be accepted as decisive, and to be maintained semper et ubique (till the day of religious reunion). A single exception was made, in the case of the see of Hildesheim, where a settlement less advantageous to the Protestants than the state of things in 1624 was adopted. In places in this diocese possessed of only a single church, "simultaneous" Catholic and Protestant worship (i.e. worship at different hours of the same day) was allowed an odd compromise largely resorted to elsewhere, though with very doubtful legal warrant.

Subjects who in 1627 had been debarred from the free exercise of a religion other than that of their ruler were by the Peace granted the right of conducting private worship, and of educating their children at home or abroad, in conformity with their own faith; they were not to suffer in any civil capacity nor to be denied religious burial, but were to be at liberty to emigrate, selling their estates or leaving them to be managed by others. Some ambiguity, however, attaches to the stipulations of the Peace on this head. One passage provides for the patient toleration of subjects not of the ruler's religion; but another seems to imply that, exceptions apart, the ruler may oblige such subjects to emigrate, though without forcibly abducting them or fixing their destination.

An important and perfectly distinct exception to these last provisions was however made in the case of the subjects of the House of Austria. The Emperor Ferdinand II had steadily refused to yield to the demand pressed upon him in the negotiations for the Peace of Prague that the adherents of the Confession of Augsburg in his dominions should be allowed the free exercise of their religion wherever they had enjoyed it in 1612; and a similar non possumus was opposed by Ferdinand III to the proposals made at Osnabrück, where the years 1618 and 1624 were successively named. (The earlier of these was to have included the Bohemian troubles.) He insisted on his jus reformandi; and Trautmansdorff repeatedly declared that his master would sooner lose throne and life than assent to such a demand. Certain concessions were granted in the cases of the three Silesian duchies of Brieg, Liegnitz, and

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Territorial rights

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Münsterberg-Oels, and of the city of Breslau, as well as in that of the nobility of Lower Austria; but nowhere else in the Austrian dominions was any exercise of their religion allowed to the Protestants of any class or condition.

In accordance with the principle of the general amnesty announced in the Peace, persons who had emigrated from the Austrian dominions. during the course of the War, and who in many instances had taken service under hostile Princes, were now allowed to return home, but without recovering either the free exercise of the Protestant religion or the possession of their lands.

Much trouble between the Confessions had always existed in the free towns of the Empire. It was now settled that where only a single religion had been exercised in 1624 the town should be treated as Catholic or Protestant accordingly; but in certain towns, of which Augsburg was the most prominent instance, where the adherents of the two religions were mixed, they were to be equally free to exercise that which they professed. At Augsburg, however, a complicated arrangement, quite unfair to the large Protestant majority among the citizens, was adopted as to municipal offices.

From religious grievances we finally pass to political-though, as in the interesting provisions as to ecclesiastical jurisdiction, the two fields of discussion lay very close to each other. At the root of the conflict which had at last become war had lain the opposition between territorial and Imperial claims. Ferdinand III and his advisers expressed much surprise on finding that both the Swedish and the French peace propositions referred so largely to the rights and liberties of the German Estates; but it was in vain that they sought to postpone to the next Diet considerations which possessed so great an interest for the two foreign Crowns.

What was at issue was nothing short of the restoration of the old territorial sovereignty (Landeshoheit) of the Estates of the realm (a few Imperial rights being reserved), and a fresh statement of certain rights supposed to be inherent in that sovereignty.

Among these rights, Sweden, France, and the Princes of the Empire, were above all anxious to place beyond all reach of dispute the right of concluding alliances, whether with Estates of the Empire or with foreign Powers. This was effected by the provision, common to both the Treaty of Münster and to that of Osnabrück, which secured to every Estate the right of concluding any such alliance with a view to his own security, provided that it was neither directed against the Emperor, the Empire, or its Landfrieden, nor against the conditions of the Peace of Westphalia itself. Notwithstanding these safeguards, a virtually complete independence was thus assured so far as any of them could assert it to each of the 300 or more political bodies which made up the Holy Roman Empire; and this independence extended to the

414

Corporate equality in the Diet

[1648 right of carrying on war in fulfilment of the obligations of an alliance which any one of these bodies might have concluded by its own choice.

In

Conversely, the Estates of the Empire and the two foreign Crowns were alike interested in seeking to prevent any resort by the successors of Ferdinand II to arbitrary measures such as those which from religious or dynastic motives he had adopted in the course of the War-the pronouncement of the Ban of the Empire against the Elector Palatine, the Edict of Restitution, the conclusion of the Peace of Prague. spite of the resistance of the Imperial Government, a clause was inserted in both the Münster and the Osnabrück Treaty assigning to the Estates of the Empire at large (not the Electors only) the right of voting in all Imperial business, whether it concerned legislation or taxation, or the declaration of war or peace. The free towns, whose position had hitherto been in some measure undefined but on whom the Empire might at all times reckon as its sincerest upholders, were now placed on a footing of absolute constitutional equality with the other Estates. In the treaty between Spain and the States General at Münster the Hanse Towns had been allowed the same commercial privileges towards Spain as the United Provinces; in the Treaty of Osnabrück Sweden undertook that their navigation and trade should be maintained in the same condition as before the War—a strange falling-off from the dominium maris Baltici which these towns were to have helped to secure to the House of Habsburg.

But of more direct importance for the political future of the Empire, which must continue to be largely dependent on the relations between its religious parties, was an innovation logically deduced from the principle of jura singulorum (Estate rights), upheld by the Protestants in both theory and practice. It was now provided that in matters of religion (or, as came to be the case, in matters regarded or treated as such) a majority of votes should no longer be held decisive at the Diet; but that such questions should be settled by an amicable "composition" between its two parts or corpora. In other words, by taking advantage of the jus eundi in partes, the Protestants might as a body resist any proposal supported, or likely to be supported, by a numerical majority of Catholic votes. In the same spirit of parity it was agreed that when possible there should be equality of consulting and voting power between the "two religions" on all commissions of the Diet, including those Deputationstage which had come to exercise an authority nearly equalling that of the Diets themselves. The Reichskammergericht was reformed on a footing of religious equality; the preponderance still remaining to the Emperor, by virtue of his nomination of two surplus assessors and of the Kammerrichter or chief justice, being in some measure neutralised by the fact that the tribunal chiefly acted through its committees (Senates). No attempt was made to establish religious parity in the Reichshofrath, whose character as an Imperial council, not subject to a revision of its