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Sovereignty in the Holy Roman and Byzantine Empires
Imperial sovereignty and succession rights are discussed below as they relate to modern times as well as ancient times:
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Introduction: Sovereignty ---
Ancient and Modern
"Sovereignty is the quality of having supreme, independent authority over a territory." (http://en.wikipedia.org/wiki/Sovereignty) Wherever sovereignty is exercised, there is government. In other words, this principle has existed since the beginning of governments and nations. Its principles have come from time immemorial down through the corridors of history and practice and can be seen in the ancient books of antiquity. Its principles are part of the wisdom of the ages and are a reflection what just and true in national and international discourse. However, the need for sovereignty was brought most powerfully and poignantly to the attention of the world in the 17th century, because of the printing press and because of the tragic circumstances and destruction brought about by the Eighty Years' War between Spain and the Netherlands and the Thirty Years' War between Catholic and Protestant European nations. These circumstance laid the foundation for the 1648 Treaty of Westphalia, which articulated the need and many of the particulars of international sovereignty law. It is not surprising that scholars were deeply impressed and concerned with these conflicts and their appalling outcome. Hugh Grotius (1583-1645), one of the most important of the founding fathers of international law, wrote his famous three volume classic, On the Law of War and Peace in 1625 in reaction to it. Professor Philip M. Nichols, Associate Professor of Legal Studies and Business Ethics, The Wharton School of the University of Pennsylvania, taught that Grotius's:
. . . intellectual descendant Gottfried Wilhelm Leibniz [1646-1716] a diplomat for and advisor to various rulers of German principalities . . . spent his life balancing the overarching rule of the Holy Roman Empire against the independence of his employers. Of necessity Leibniz found his employers to be sovereigns and the polities [territories] they ruled to be legitimate international actors. Samuel Pufendorf [1632-1694], who followed Leibniz, also wrestled with the need to legitimize independent states as they freed themselves from the weakened Holy Roman Empire. He posited that independent states “and supreme sovereignty come from God as the author of natural law,” thus providing a foundation upon which the independent states could place themselves on equal footing with the empire - an argument based on their divine right to international personhood. The concepts born of the exigencies of Leibniz and Pufendorf became dogma as generations of international legal scholars - from Wolff through Vattel and Kant to Kelsen --- preoccupied themselves with [the] conception [of] international legal personhood [or modern state]. (“Integrated Sovereignty,” 2008 Seminar Lecture: http://works.bepress.com/cgi/viewcontent .cgi?article =1002&context=philip_nichols)
“This principle [of sovereignty] retains its vitality in international tribunals to this day.” (Ibid.) Black's Law Dictionary describes sovereignty as:
. . . Supreme, absolute, and uncontrollable power . . . , supreme political authority; the supreme will; . . . the self-sufficient source of political power from which all specific political powers are derived; . . . the power of regulating . . . internal affairs without foreign dictation . . . . (1430 (8th ed. 2004)
Professor Nichols wrote, “Local courts throughout the world [in modern times] use the definition found in Black’s, or a similar absolutist definition.” (Ibid.) However, “. . . in the world no entity [no country, nation or kingdom] possesses absolute control over everything,” nor should it. (Ibid.) In other words, “. . . there has never been a ‘mythical past’ in which states could exercise absolute control and authority.” (Katherine L. Lynch, The forces of economic globalization: challenges to the regime of International Commercial Arbitration, 2006, pp. p. 52-53) Sovereignty does not mean something extreme in practice as some scholars seem to infer phisophically. It is not something that is always in constant exercise or easily observed. It means the right exists to use supreme, absolute power, if necessary, but such is rarely done, because power is always limited. For example, in a federation as in the Holy Roman Empire, power was separated and divided by checks and balances. But, if necessary, sovereignty, which is absolute, could be used for the best interests and good of the nation, if it was in an emergency situation like being under attack or if martial law had to be employed. Otherwise, the full weight, power, and glory of sovereignty is dormant and passive, and various separate and distinct entities exercise the sovereign power delegated to them.
Nevertheless, “the absolutist definition of sovereignty has become a favorite punching bag of legal scholars and political scientists,” yet this judgment or practice is unfair, since sovereignty is an absolute right or entitlement, not something openly manifest or in constant use. (op.cit., "Integrated Sovereignty") So, “while this notion of sovereignty has provoked criticism, it [the concept of sovereignty] retains vitality in international use, and remains the cornerstone [or the fundamental and most seminal principle] of international law." (Ibid.) It is indispensable to the nations and society not only back then, but now.
Therefore, even though it is rarely used in practice, the right or privilege of sovereignty is absolute and supreme. This most powerful of all political concepts ". . . is built upon an absolutist concept of sovereignty," in ancient as well as modern times. (Ibid.) In other words, ". . . sovereignty [absolutist sovereignty] . . . dominates international law." (Ibid.) It has for hundreds of years. In our day and age, "Courts [both local and international] continue to use the absolutist definition. . . ." (Ibid.) ". . . The absolutists conception of sovereignty dominates scholarly discourse" as well. (Ibid.) Because, no matter how it is criticized, no one can get away from the "fundamental soundness" of sovereignty in the world. (Ibid.) In other words, sovereignty is a robust concept that has withstood the test of time. Professor Nichols explained:
Richard Steinberg summarizes the manners in which the traditional, absolutist concept of sovereignty expresses itself jurisprudentially:
Legal sovereignty implies that each state has the legal competence to, inter alia, participate in the international system on an equal footing with other states, conclude treaties on the basis of consent, exclude other states from interfering in its internal affairs, govern the affairs of its domestic territory, and control its borders. The state so conceived is seen as the central global actor by lawyers in most international organizations and ministries of foreign affairs, defense, and trade. [Richard H. Steinberg, Who Is Sovereign?, 40 STAN. J. INT’L L. 329, 329 (2004)]
In other words, the state is the sole international actor and as such is inviolate [it cannot be lawfully violated] by other international actors. (Ibid.)
Sovereignty means self-determination. Sovereignty means equality or equal rights between nation-states. Sovereignty means territorial integrity and non-interference by outside players. As stated in The Schooner Exchange v. M’Faddon, 11 U.S. (7 Cranch) 116, 136 (1812), the Court states in no uncertain terms that, "The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the restriction. . . ." (Ibid.)
Because the principle of supreme authority within its own borders is so important to peace and prosperity in the world, sovereignty has been studied and thought about a great deal especially since 1648. In the days of the Holy Roman Empire, a number of scholars and jurists tried, but could not identify, label or explain who or what entity in that great Empire was sovereign. This baffled them, because it was so complicated. A simplified and realistic legal view was that the Emperor was "de jure" or the rightful sovereign, while the Princes of the Empire were "defacto" sovereigns --- the actual or real rulers in their own realms and through their Councils on a collective basis for the whole empire. (See: David Boucher, "Resurrecting Pufendorf and Capturing the Westphalian Moment," Review of International Studies, Vol. 27, no. 4, 2001, p. 562) This same arrangement can be seen in the case of constitutional monarchies, the king or sovereign prince holds all sovereignty in a suspended state. Though he obligates himself to follow certain ordained rules in a constitution, he is still the sovereign, who holds all its full rights, but in a dormant manner, that is, he possesses all the power and glory of the nation, but his power is in an inactive or passive role. In other words, he is the "de jure" or rightful ruler as Head of State, and the legislature and executive branches are the "defacto" or actual rulers as Heads of the Government. (See the subchapter “The King and the Constitution. . .” in the article "Sovereignty & The Future of Nobility and Royalty")
Interestingly, a wrongfully deposed monarch, whether he was absolute or limited, is "de jure" or rightful --- the same as most constitutional monarchs. Both hold, in an inoperative way, all the supernal qualities of a true sovereign, that is:
1. Ius Imperrii is the right to command and legislate,
2. Ius Gladii is the right to enforce ones commands,
3. Ius Majestatis is the right to be honored, respected and protected as a sovereign person or monarch,
4. Ius Honorum is the right to honor and reward others.
Absolute, indivisible, inviolate, and inseparable --- sovereignty cannot be divided, mutated, discarded or obliterated rightfully unless it is done willingly. But the point is, sovereignty is all or nothing in reality or by construct. It reigns supreme as the highest principle of governmental power on earth. Quoting from the article "Sovereignty & The Future of Nobility and Royalty," ". . . Absolutes don't exist in degrees. You can't be partially pregnant, sort of dead, kind of human, or almost sovereign. These are not absolute conditions." One either has all the rights or none of them. Obviously, neither the "de jure" monarch or the reigning constitutional monarch can command and legislate or enforce their commands in their present state without permission --- this sovereign power is inactive, but most have the active right to be honored and respected, and the right to honor and reward others.
Nevertheless, both the "de jure" and the regnant or reigning sovereigns have all the rights of sovereignty in either an active or passive mode. That is, either they hold all the glory and majesty of sovereignty embodying all four royal rights, or they are not sovereign and royal at all. Professor Nichols declared that scholars “reinforce the concept” and so does the law and so do the courts. (op. cit.)
The article "Sovereignty & The Future of Nobility and Royalty" describes how a "de jure" monarch and/or his heirs can lose all four rights permanently, and how they can keep them indefinitely throughout their generations forever, if they abide by the international laws that determine either continuation or the complete and total forfeiture of those royal prerogatives.
The Western Holy Roman Empire
The Holy Roman Empire (Heiliges römisches Reich), which once covered much of what is now Italy, Germany, Switzerland and Austria and some of Poland, started in 800 AD with the crowning of Emperor Charlemagne. Others feel it started 962 AD when Otto I was crowned Emperor. Either way it lasted around a thousand years all the way to 1806, which is quite amazing when you look at the history of most empires:
Assyria (859-612 B.C.): a 247-year reign.
Persia (538-330 B.C.): a 208-year reign.
Greece (331-100 B.C.): a 231-year reign.
The Roman Republic (260-27 B.C.): a 233-year reign.
The Roman Empire (27 B.C.-180 A.D.): a 207-year reign.
The Arab Empire (634-880 A.D.): a 246-year reign.
The Mameluke Empire (1250-1517 A.D.): a 267-year reign.
The Ottoman Empire (1320-1570 A.D.): a 250-year reign.
Spain (1500-1750 A.D.): a 250-year reign.
Romanov Russia (1682-1916 A.D.): a 234-year reign.
Britain Empire (1700-1950 A.D.): a 250-year reign.
The USA (1790-2009 A.D.): 219 years and counting.
The first period of the Holy Roman Empire was from 962 AD to 1250 AD and was called the "age of the Emperors," the second period was the "age of the Princes" from 1250 to 1438, then came the "Early Hapsburg" period from 1438 to 1648, and the final phase from 1648 to the end of the Empire, which was declared on August 6, 1806. (www.biblebelievers.biz/hrea.htm)
The Holy Roman Empire was a mix between a monarchy and an aristocracy. It was a confederation of independent states, which made decisions in the Imperial Diet or Council by majority vote. This created a separation of powers. ". . . The princes were not mere officials of the Empire [or of a centralized government] with delegated powers, but true rulers [sovereigns or monarchs] who represented their [independent] dominions in the Imperial Diet. . . ." (Heinz H. F. Eulau, "Theories of Federalism under the Holy Roman Empire," The American Political Science Review, vol. 35, no. 4, August 1941, p. 663) This happened slowly over hundreds of years, then in 1648, it became part of the Imperial constitution as a result of the thirty years war. At that time, "The Peace of Westphalia recognized the full territorial sovereignty of the member states of the empire. . . . By this and other changes the princes of the empire became absolute sovereigns in their own dominions." (www.gwleibniz.com/britannica_pages
Sovereignty --- the supreme power (the summum imperium or suprema potestas) over subjects was administered via the constitution of the Empire. However, the supremelaw was never made into a simple written document. Rather it consisted of an assortment of unwritten traditions and practices created throughout its history along with formal statutes and treaties and both written and unwritten legal oaths or assurances. Hence, the fundamental rules were complicated, vague and sometimes contradictory rather than being definitive, explicit and perfectly clear. (Gagliardo, John G. Reich and Nation: the Holy Roman Empire as idea and reality, 1763-1806 (Bloomington: Indiana University Press, 1980, p. 16) (http://grmrulers.angelfire.com/Constit.html)
The most fundamental documents that made up the constitution of the Empire were the following:
the constitutions of Frankfurt 1220 and 1232 recognizing the rights of spiritual and temporal princes. (http://welt-jahrtausend.de
the constitution of 1338 (Frankfurt) freeing the election of the emperor from papal control.
the ordinances (Ordnungen) of 1495 (revised 1555) and 1518 (revised 1654) on the courts of justice.
the Capitulatio Caesarea (Wahlkapitulation), issued at each election from 1519, consolidated in a perpetual edict in 1711.
the religious treaties (Passau 1552, Augsburg 1555) on religious toleration
In spite of this complication, the Empire held together for about a thousand years, even though the elected Emporers, especially after 1648, became basically nothing more than a committee chairman over a board of over 300 very powerful and very independent princely directors. However:
While each German principality had its own legal system, the final Courts of Appeal applied to the whole of the Holy Roman Empire — the final appellate was the Emperor himself, and his decisions in cases brought to him were final and binding on all subordinates. The Emperor could, and did, depose princes when they were found by the courts to be at fault. (http://en.wikipedia.org/wiki/Westphalian
Nevertheless, territorial supremacy of each imperial state prevailed as the general ruling principle, but each had to recognize the Imperial suzerainty no matter how weak this over-ruler or emperor was.
It is estimated that the Empire was composed of over 1800 separate entities loosely connected or federated together into an conglomerate of little semi-independent countries. Each was ruled respectively over their own king, duke, prince, archbishop, prince/bishop, count, abbess, city council, lord, baron or other ruling entity possessing direct Imperial immediacy, or ruling a mediatized realm under a more powerful overlord who owned or held virtual sovereignty over it. (Ibid.)
François R. Velde, a historian and scholar on German history, stated:
Sovereignty [among these territories in the Holy Roman Empire] was considered to be bestowed by the Emperor, and its possession to result from an investiture by the Emperor [but] . . . the right to receive the investiture was nevertheless attached to the land, and could not be denied by the Emperor.
Sovereignty was exercised: by hereditary lords, by elected prelates, by municipal governments. It could pass by inheritance, testament, investiture, infeoffment [complete surrender and transfer of all land ownership rights from one person to another], or even sale [buying it by purchase] or lien [the right to take another's property if an obligation is not discharged]. Its possession or enjoyment did not require noble status. It could be owned jointly in condominium [with two or more rulers]. (www.heraldica.org/topics/national/hre.htm#Sovereignty)
It was common place in the Holy Roman Empire for territorial sovereignty to be bought and sold, mortgaged, and transferred between different owners and therefore title bearers. (See: "The Buying and Selling of Sovereignty" in the article "Sovereignty & The Future of Nobility and Royalty" This subsection gives many examples of such. More examples exist in the article "General Principles and Practices.") By this means, sovereignty, titles, regalian, ownership and nobility were conveyed from one person to another. Two good examples of the right to transfer sovereignty in international law is demonstrated in the Western Hemisphere where the United States purchased the Louisiana Territory from Imperial France in 1803 and the purchase of the Alaskan Territory from Imperial Russia in 1867. (Ibid.)
Although sovereignty existed before the Treaty of Westphalia in 1648, this marked the beginning of a universal recognition of three great principles upon which the world has been organized ever since this important time in the world's history:
(1) The principle of the sovereignty of states and the fundamental right of political self determination,
(2) The principle of (legal) equality between states, and
Besides the above, sovereignty among the States of the Holy Roman Empire basically meant that each State had the right to dispense justice, collect taxes, tolls, mint coins, have mineral rights, seigniorial rights --- the right to be the lord, master and owner of the land and all that pertains to it, the right to sell or mortgage the territory and its titles, the right to be honored and to honor others, the right to make treaties, to protect oneself, enforce laws and have an army of defenders. The various territories had these rights to various degrees depending on their power and independence in the realm.
The right to make treaties with other nations could "not be against the emperor, and the Empire, nor against the publick Peasce. . . ." (Stephen D. Krasner, "Sovereignty," Foreign Policy, No. 122 (January - February 2001), p. 21) Each prince was to be secure in the possession of his territory and have equal liberty with the stronger princes. No prince was to oppress, interfere or meddle in the affairs any one else's territorial dominion. (Peter Schroder, "The Constitution of the Holy Roman Empire after 1648," The Historical Journal, Vol. 42, No. 4 (Dec., 1999), p. 971) The vast majority of the lower ranks of the nobility never enjoyed any kind of sovereignty.
An electoral prince, duke, prince, count, baron, or lord could and did use the title of their territories, which basically became their names, but custom and practice in the Holy Roman Empire also permitted the following:
The family could use the title of a territory it did not own when it:
a. claimed a territory [even one that is extinct] (e.g. Dukes of Saxony bore titles of the extinct house of Jülich-Kleve);
There are other examples, but this is sufficient for this subject.
There was a time, when Italy was a part of the Empire, that the Emperor was considered to be the "ruler of the whole habitable world" and the personification of all the is lawful and legal, by right of being the legal heir to the ancient Roman Empire after corronation by the Chief Pontiff or Catholic Pope. He was thus considered to be the "lord of the world," holding the supreme civil power above all others on earth. "No imperial privilege was prized more highly than of creating kings, for there was none which raised the emperor so much above them. . . . The prerogative was his in the same manner in which that of conferring titles is still held to belong to the sovereign in every modern kingdom. (James Bryce, The Holy Roman Empire, 1873, p. 250) A number of kings were created by this high authority and a number of requests were turned down. This exalted status, which was above all kings, was gradually erroded and diminished expecially when other rulers became Emperors, such as, those in Russia and other places. The Holy Roman Emperors also occasionally upgraded a number of territories in title, dignity or power like from lordship to a county or county to a principality, which it is believed required the approval of the Imperial Council. In the latter years of the Empire, the prince/owner of a prominent Imperial State with a vote in the Council of the Princes, who paid the proper yearly taxes and the normally required support, was automatically accorded the status of a royal or imperial "Prince of the Empire" or Reichsfürst whether the state was a dukedom, principality or county.
The nature of the Imperial honor of being the Emperor was legally elective, not hereditary. The Emperor was chosen or elected by the Prince Electors --- usually the most powerful men in the Empire.
A prospective Emperor had first to be elected King of the Romans: Rex romanorum; German: römischer König. German kings had been elected since the 9th century; at that point they were chosen by the leaders of the five most important tribes (the Salain Franks of Lorraine, Ripuarian Franks of Franconia, Saxons, Bavarians and Swabians) (http://en.wikipedia.org/wiki/Holy_Roman_Empire)
Although the office was legally elective, often the son of the last emperor was chosen as king, and when this was confirmed by the pope, he received the title of Emperor. The number of electors was set at 7 in 1356, changed to 8 in 1648, 9 in 1708, 8 in 1777, 6 in 1801 and 10 in 1803, but the new electors were never confirmed before the empire was abolished. (Ibid.) The four new electors were from Würtemberg, Baden, Hessen-Kassel and Salzburg, none of them ever exercised any votes. These Electors represented the highest council in the Empire --- the Kurfürstenrat. The next level was the Council of Princes or Fürstenrat which consisted of first, the clerics or ecclesiastical princes, second, the secular princes (grand-duke, duke, prince, margrave, landgrave) and third, the counts and lords. The third division was the Council of the Imperial Cities or Collegium der Reichstädte consisted of 51 cities. These three major divisions constituted the Reichstag or Legislative Body of the Empire. Officers of the Emperor included: High Chancellor of Germany, High Chancellor in Italy, High Chancellor in Gaul and Arles (or Burgundy), Grand Cup-bearer (Butler), High Steward, Grand Marshal, High Chamberlain. These positions were held by hereditary officers called Erbämter. During a coronation of an Emperor, the Elector Prince stood in these positions temporarily.
In 1792, the electors were as follows:
Three ecclesiastic electors
the Archbishop of Mainz (Arch-Chancellor of Germany)
the Archbishop of Trier (Arch-Chancellor of Burgundy)
the Archbishop of Cologne (Arch-Chancellor of Italy)
Five secular electors:
the King of Bohemia (König von Böhmen) Arch-Cupbearer
the Margrave of Brandenburg (Markgraf von Brandenburg) Arch-Chamberlain
the Count Palatine of the Rhine (Pfalzgraf bei Rhein) Arch-Steward
the Duke of Saxony (Herzog von Sachsen) Arch-Marshal/Reichsvikar
the Duke of Bavaria (Herzog von Bayern) Reichsvikar
These powerful men held full imperial royalty in the Holy Roman Empire. The princes and counts, who were sovereign, were minor royals. (See the subtitle "Sovereignty and Royalty," in "Sovereignty & The Future of Nobility and Royalty." This was especially true when the Empire was dissolved and "all Imperial Estates, which were not mediatized, received unlimited sovereignty." (http://grmrulers
.angelfire.com/last.html) Napoleon's ambassador told the Imperial Diet of the Holy Roman Empire, or what was left of it in 1806, that the Empire of France, on account of the fact that the German Empire was falling apart, felt:
. . . compelled to declare that he can no longer acknowledge the existence of the German constitution, recognizing . . . the entire and absolute sovereignty of each of the princes whose states compose Germany [the Holy Roman Empire] today, maintaining with them the same relations as with the other independent powers of Europe. (August 1, 1806: http://personal.ashland.edu/~jmoser1/dissolution.htm)
The abdication of Francis II, emperor of the Holy Roman Empire, did more than abdicate his status and rights as emperor, it dissolved the empire. It was certainly in his power to abdicate (others had done so throughout history), but he had no power to unilaterally or arbitrarily dissolve the whole Empire. However, the empire was under assault and under duress. Napoleon could continue the war and destroy more of the territories and ultimately declare himself emperor. To save the people from this horror, he had to do something. In the meantime, many of the territorial princes had already left the Empire and had formed a confederation with Napoleon. The empire was falling apart. Francis was also under duress personally, because Napoleon gave him an ultimatum of abdicating before August 10th, 1806 or face a war of subjugation against his own kingdom --- that of Austria. Using his emergency powers, the Emperor not only gave up the Imperial Crown, but he released everyone from their obligations to Emperor and Empire.
This was still legally untenable and unconstitutional, but what made it lawful and legitimate is that everyone in the empire accepted or gave full consent to the dissolution. There was only one exception --- the Elector Prince of Hanover. He nevertheless finally accepted it eight years later in 1814. Hence, it was unanimous and complete.
No effort was ever made to reconstitute and re-establish the empire. It was lost and ended forever. The only way the empire could be resurrected, on a "de jure" basis (we are not discussing a "defacto" or actual kingdom, but only on an abstract/intangible level on a legal basis), is if the majority of the rightful successors to the Elector Princes, that is, Mainz, Trier, Cologne, Bohemia,Brandenburg, the Palatine of the Rhine, Saxony and Brunswick-Luneburg, elected a new emperor. But this would not be enough. Such a person would be the emperor of nothing. It must be remembered that besides the Elector Princes there were about 300 or so "de jure" sovereign princes and counts, who once constituted the senior rights to the Empire. They are now free "de jure" agents --- completely independent and unconnected to the Empire or anyone else. To reconstitute the Empire, each "de jure" sovereign would have to willingly support such, or it could not be fully and completely restored. That is, according to international law, the rightful heirs to the original territories would have to willingly give up their independence to such an enterprise or there would be no "de jure" empire to rule over.
Years after the fall of the Holy Roman Empire (the First Reich) and two confederations, these individual countries (kingdom, dukedoms, principalities, counties, etc.) did use all their lawful powers, rights and privileges as independent "defacto" sovereign nations to establish a completely new empire --- the Second Reich. It was all done in full accord with the law of nations. And there was a practical need for it, which unity was, at least theoretically, economically beneficial and protective to all.
However, no right minded "de jure" prince in this day and age is going to sell his independent birthright for a mess of pottage --- that is, no one is going to do such for a "de jure" empire that has no benefit to anyone or any inherent good. Who would give up their "de jure" rights to be a part of something that has no real meaning, value, usefulness, relevance or any material benefit? It would not be an actual or "defacto" nation. Hence, it will never happen. It would be virtually impossible to convince these families to do something that makes no sense.
But this is the only legal way that a lawful restoration of the Holy Roman Empire could take place on a "de jure" basis. The many individual princes, dukes, counts, etc. with "de jure" sovereignty would have to willingly, and without compulsion or duress, give up their independent rights, to an emperor chosen by the successors to the Electoral Princes. All of the above is in full accord with the constituted law and constitution of the Holy Roman Empire as well as current international and dynastic law, which is still effectual and binding today. (See: "Sovereignty & The Future of Nobility and Royalty" and "Dynastic Law")
Another important related, but different point, has to do with the elective nature of the imperial throne. "The German monarchy had always contained an elective element but after 1273, it becomes purely an elective. Emperors could not pass their title to their sons." (http://faculty.ucc.edu/egh-damerow/holy_roman_empire.htm) Obviously, you cannot give what you don't have --- you cannot pass on a right that you do not own or possess. For example, the Hohenstaufens were a Imperial dynasty from 1138 to 1254. Not only did this line die out and become extinct, but since the Imperial crown was elective, they would have had nothing to pass on. With the death of the last Hohenstaufen Emperor's son, who was executed in 1268, the Dutchy of Swabia, their family realm, died as well as their were no heirs. (http://en
Conclusion on Sovereignty
and the Western Empire
There is no "de jure" Holy Roman Empire or emperor on earth today. And the First Reich will never be re-established on either a "de jure" and/or "defacto" level. Anyone claiming such today would be out of harmony with history and law and the constitution of the First Reich. Therefore, if a person did claim this honor in modern times, a person could know, without a doubt, that it would be a counterfeit claim with no merit or validity; and such a person would be impersonating what is real and genuine.
Remember that there are scores of fake or counterfeit orders of chivalry, inaccurate noble and royal lines of ancestry, phony coat-of-arms, and myriads of scammers and charlatans, ever willing to make a buck selling make-believe or fabricated titles if you contribute enough money. Beware of these people. (For more information, please see: "Title of Nobility Scams," see also: "Fake Titles and Counterfeits")
For detailed information on the history and organization of the holy roman empire, see any of the following references that might be of interest:
The Byzantine or Roman Empire of the East
The Byzantine Empire (330 A.D. to 1453 A.D.) used a two headed eagle to represent the dual sovereignty of the Emperor over both the religious and secular domain and the dominance of the Byzantine Emperors over both East and West. The distinction between Roman and Byzantine Empires is impossible to date as the Byzantine Empire is a direct successor to the Roman Empire and the word "Byzantine" was not coined until 1557. The people of the Empire considered themselves to be the Imperium Romanum or Empire of Rome. This Empire impressively lasted over a thousand years similar to the Holy Roman Empire, which began about 800 A.D. and lasted to 1806. The Byzantine Empire began when the Roman Emperor Constantine moved the capital of Roman power to the East in 324 A.D. to a city, which later became known as Constantinople (now Istanbul, Turkey) in 330 A.D.
The Empire became a bastion of great progress in art, science, literature, culture and Christian graces, while Western Europe was mired in the Dark Ages. However, much of this magnificence was little understood or known historically until the last century. Byzantium was not a static, fossilized state as some have suggested. Its contributions were much greater and more extensive than originally thought and its influence spread thousands of miles beyond its borders. This includes ". . . Western Europe, the South Slav states, Russia, the nomadic pastoralists of the Eurasian steppe-lands, and the world of Islam." (Robert Browning, The Byzantine Empire, 1992, p. xii) "The Byzantine Empire was for many centuries the most powerful, the richest and the most civilized state in Europe and the Near East." (Ibid., p. xi)
In its long history, ". . . the Byzantine Empire outfought, out-maneuvered, or simply outlasted successive waves of enemies who attacked it from all four points of the compass." (www.ancientworlds.net/aw/Group/30347) But the wars and rebellions greatly diminished the empire's size. After a thousand years, few possessions were left except some enclaves until the Empire came to an abrupt end in the year 1453 when Constantinople fell to the Sultan Muhammad II after a final desperate attempt to defend it under the last Emperor Constantine XI.
Throughout the long period of its existence, the Emperors stood as the sole and absolute rulers of the realm. They were considered to be of divine origin and were very powerful and influential. Unlike, those in Europe, who used titles of nobility, "Most of the offices and titles [in the Byzantine Empire] were honorifics only. . . ."
. . . The Byzantine's saw in the imperial power the terrestrial image of the omnipotence of God. . . . He possessed full executive powers over all people [including all vassals], could put anyone [including vassal kings] to death without trial. . . . No one was so important or so rich to be beyond the reach of the emperor's hand. Nobility, wealth, rank [even the rank of king], or reputation was no defense against the imperial will. (Aleksandr Petrovich Kazhdan, People and power in Byzantium, 1996, pp. 145-146)
The autocrat or despot of Byzantium was supreme --- no one else, no vassal, no one had real sovereignty, but the emperor himself. So great was the Emperor's power that it was "aut Caesar aut nullus," which means "either Caesar or a nobody." (www.panarchy.org/maine/territorialism.html) The vassal kings, ". . . were not independent, but dependent, they were not sovereignties, but vassals to the Roman, or as we wrongfully term it, the Byzantine empire." (Alexander Del Mar, The Middle Ages revisited: or, the Roman Government and Religion and their Relations of to Britain, 1900, p. 308) Every power revolved around the emperor who was absolute in everything. The major weakness of such a position of amazing infinite or unlimited power, which the greedy sought after, was the fact that this superior and unlimited position was non-hereditary --- anyone could attain to it by any means at their disposal and if they were successful in overthrowing the reigning emperor by murder and intrigue, it was considered to be manifest destiny, that is, the usurpation was considered to be legitimate, rightful and approved of God:
Although several families managed to establish ruling dynasties [in the empire], Byzantium did not fully develop the notion of hereditary rule. Many able and ambitious men (and at least one woman) from very humble beginnings managed to rise to the top over those who had a 'better' claim in terms of their family background. The Byzantine idea that the Emperor was ultimately selected by God also, perversely, helped successful rebels and usurpers: If you were able to depose the existing Emperor and rule in his place you obviously had God's approval --- otherwise He would never have allowed you to succeed. (http://byzantium.seashell.net.nz
Since there was no familial succession to the throne, imperial power was never considered as belonging to a particular family, thus automatically excluding all outsiders from ascension to the throne. . . . As a result, there was an extraordinary instability of individual imperial power. Half the Byzantines emperors were forcibly removed from power. (Aleksandr Petrovich Kazhdan & Giles Constable, People and Power in Byzantium, 1982, p. 146)
This prevailed in the realm for over 800 to 900 years. It meant that usurpers held total sovereignty, and no matter how just another man's claim might be, even if an emperor were deposed, he could not hold "de jure" sovereignty under this kind of succession, because all sovereignty was owned by the most powerful.
To overcome this lack of a regular method of succession, a Byzantine Emperor had to proclaim a co-emperor during his lifetime and thus secure the throne to his would be heir. The legitimist sentiment strengthened during the eleventh century, and the throne was occupied after 1081 . . . but even then no law of succession was issued, and the way to the throne remained open to anyone except an eunuch or a monk.” (Ibid.)
In other words, rights could not be legally passed down to family members. You simply cannot give to another by inheritance what you do not have. Hence, nothing, no legal right, could be passed on or inherited. Everything ended with each individual emperor. The practice of appointing sons as co-emperors never gave the family any legal right of inheritance as nothing was hereditary. Co-emperorship was not or is not a hereditary system. Some of the co-emperors were not even family members. The whole point is, ". . . Primogeniture, or indeed heredity itself, was never legally established in Byzantine imperial succession. . . ." (http://en.wikipedia.org/wiki/Byzantine_aristocracy_and_bureaucracy)
As for dynastic succession, Ibn Khurradadhbeh notes that kingship in the Byzantium is not hereditary: "There are no codes that regulate imperial succession; it is open to anyone, including women. Only strength counts." (Nadia Maria El-Cheikh, Byzantium viewed by the Arabs, 2004, p. 88) (H. T. Norris, in "Shu'ubiyyah in Arabic Literature," The Cambridge History of Arabic Literature, 'Abbasid Belles-Lettres, ed., 1990, pp. 31-47)
Cut-throat succession prevailed. (See the answer to question number eighteen (#18) in Part I, "Do succession rules impact on the loss of internal "de jure" sovereignty?") "[The] texts reflect this lack of juridical clarity [in succession], which, in itself, partly explains the legitimacy . . . and vitality of usurpation." (Ibid., pp. 88-89) So many emperors were overthrown, because legitimacy did not legally reside in the family. "[There] was an absence of a strict rule of succession . . ." all the way to "John V (Palaeologus)" (1341-1354). (George Finlay, A History of Greece, vol. 3: "The Byzantine and Greek Empires," 1877, p. 432) The point is, succession ". . . was not regulated by law. . . ." (Georgije Ostrogorski, History of the Byzantine State, 2002, p. 107) In other words, "The principle of hereditary succession had no legal sanction. . . ." (Aikaterine Christophilopoulou, Byzantine History, vol. 1,1986, p. 353) Again:
. . . the office of Roman and Byzantine emperor remained vaguely elective (albeit with the election procedure never strictly defined, but generally understood to be a matter for the Senate) and heredity never was, and could never be, formally established in law. In order to bypass this prohibition and ensure dynastic continuity, many reigning Byzantine emperors had their heirs crowned co-emperor so that the throne could not be considered vacant at their own death and thus the need for succession by election would not arise. (http://en.wikipedia.org/wiki/Elective_monarchy)
So even though a system of co-emperors was established in an attempt to perpetuate a dynasty, ". . . the imperial throne of Byzantium was never hereditary. . . ." (Andreas Nikolaou Stratos, Byzantium in the Seventh Century, vol. 3, 1975, p. 192)
The principle to consider the emperor as the "best" and the "chosen" of God was not compatible with . . . hereditary succession. . . . To overcome [this problem], the Byzantines introduced the institution of co-emperor, the long practice of which created and finally consolidated [in a] dynastic and hereditary succession. . . . (Yannis Karayannopoulos, "State Organization, State Structure, Economy and Commerce," History of Humanity, Muhammad Adnân Bakhît, ed., 2000, p. 183)
That is, "[Eventually] . . . the principle of legitimate hereditary right was established." (Demetios Bikelas, "The Byzantine Empire," The Living Age, Eliakim Littell and Robert S. Littell, ed., vol. 171, 1886, p. 647) In other words, ". . . after 80 years of continuous rule the dynasty of Palaiologos had established an inalienable right to the crown." (Donald MacGillivray Nicol, The Last Centuries of Byzantium, 1261-1453, p. 188) One of the reason for their success in changing succession rights was the empire became smaller and smaller and was no longer an empire in size, but was no more than the size of a large kingdom. In the end --- the last 50 years, it was not much more than a city and minor territories. The change in succession rights under the last few Palaiologos rulers was effected while the empire was very little and more controllable.
This change did not occur until very late in the Empire's history. All previous attempts in the history of the Empire were nothing more than the old non-hereditary co-emperorship strategy, which did not give the right of inheritance to the family. However, by the Fourth Crusade there was an ". . . establishment . . . on a permanent [legal] basis of a single Imperial family at Constantinople --- the Palaiologos family --- the victory of a purely [full and complete] hereditary and dynastic succession. . . ." (John F. Haldon, Warfare, State and Society in the Byzantine World 565-1204, 1999, p. 11) That is, the old way was in this latter time finally replaced by a succession within the family that was strictly hereditary; such that, the co-emperor practice, which continued, was not necessary, as the royal house for the first time in history had the "de jure" entitlement to succeed. However, this did not take place until the late 1300's. It was not until this time that a more salic type of hereditary succession was finally legally established to perpetuate and ensure the continuation of imperial power. However, by this time the empire was on the decline and had only a short time to continue its existence. The empire was overthrown in 1453, but at that time and for the last 50 years of its existence, the empire only consisted of the city of Constantinople and its surrounding territory and some enclaves. Constantinople continued to exist only because the walls of this great city were probably the greatest and most secure on earth, and for all practically purposes were impenetrable, until the super-cannon --- the biggest and most powerful cannon of its time, which was created by the Ottoman rulers to successfully break through the strong walls of this famous city. (See the following for facts on each emperor: http://en.wikipedia.org/wiki/List_of_Byzantine
The following is a list of emperors. There were about 90 emperors from over thirty different families in the thousand year period and 29 deposed emperors. "Thirteen were banished, eight were blinded, and twenty-one were murdered." (Robert Bator, Daily Life in Ancient and Modern Istanbul, 2000, p. 26) The instability of rulers can be traced directly to a lack of a legally established hereditary succession, which left the imperial office open to any ambitious man and all the corruption that this afforded. (The Byzantium record of usurpation contrasts negatively with the Holy Roman Empire, which only had about 30 emperors (kings) from five different families in a thousand years and only 7 were deposed.) (www.informationdelight.info/encyclopedia
/entry/List_of_monarchs_deposed_before_the_17th_century) Throughout the history of mankind, hereditary monarchy has generally proven to be the best form of absolute monarchy for it ensures greater stability and continuity and eliminated much of the destructive succession problems of elective procedures.
324-337 Constantine the Great
337-353 Constantine the Great with Constantius and Costa
361-363 Julian the Apostate
379-395 Theodosius I
408-450 Theodosius II
457-474 Leo I
474 Leo II
476-491 Zenon (second reign)
491-518 Anastasios I
518-527 Justine I
527-565 Juntinian I
565-578 Justine II
578-582 Tiberius I Constantine
641 Constantine III, Iraklion
641-668 Constance II
668-685 Constantine IV
685-695 Justinian II
698-705 Tiberius II Apsimaros
705 Justinian II (second reign)
711-713 Philipic Vardan
713-715 Anastasios II
715-717 Theodosios III
717-741 Leo III
741-775 Constantine V
775-780 Leo IV
780-797 Constantine VI
797-802 ?????? (Irene)
802-811 Nikiphoros I
811-813 Michael I Rangabe
813-820 Leo V
820-829 Michael II
842-867 Michael III
867-886 Vasilios I
886-912 Leo VI
913-959 Constantine VII
920-944 Roman I Lacapine
959-963 Roman II
963-969 Nikiphoros II Fuccas
969-976 John I Cimiskios
976-1025 Vasilios II
1025-1028 Constantine VIII
1028-1034 Roman III Argyrus
1034-1041 Michael IV
1041-1042 Michael V
1042 Zoia, Theodora
1042-1055 Constantine IX Monomahos
1056-1057 Michael VI
Duccas and Comnenus dynasties
1057-1059 Isaac I Comnenus
1059-1067 Constantine Ducca
1068-1071 Roman IV Diogenos
1071-1078 Michael VII Ducca
1078-1081 Nikiphoros III Votaniatos
1081-1118 Alexius I Comnenus
1118-1143 John II Comnenus
1143-1180 Manoilos I Comnenus
1180-1183 Alexius II Comnenus
1183-1185 Andronikos I Comnenus
1185-1195 Isaac II
1195-1203 Alexius IV Angelos
1203-1204 Isaac II (second reign) with Alexios IV
1204 Alexios V Mursophilos
1261-1282 Michael VIII Palaeologus
1282-1328 Andronikos II Palaeologus
1328-1341 Andronikos III Palaeologus
1341-1354 John V Palaeologus
1376-1379 Andronikos IV Palaeologus
1379-1391 John V Palaeologus (second reign)
1390 John VII Palaeologus (son of Andronikos IV)
1391-1425 Manuil II
1425-1448 Ioannis VII
1449-1453 + Constantine XI Dragash Palaeologus
Claimants in Exile were:
Demetrios Palaiologos (Son of Manuil II, brother of Ioannis VIII and Constantine XI) 1453-1460
Thomas Palaiologos (Son of Manuil II, brother of Ioannis VIII and Constantine XI) 1453-1465
The last Emperor's niece, Andreas' sister, Sophia Paleologue, married Ivan III of Russia, but because sovereignty was hereditary and could pass only through males, Russia had no valid claim after the fall of all de facto power in 1453. The obvious conclusion of scholars is that, "Andreas (Andrew) . . . was the only legitimate representative of the dynasty of the Palaeologi, who possessed the rights to the lost Byzantine throne." (A. A. Vasiliev, History of the Byzantine Empire, 324-1453, vol. 2, 1952, p. 590) It was a well-known facts that, "The title [or ownership] of Eastern Roman Emperor was the sole inheritance of Andrew Palaeologus. He sold his claim to Charles VIII of France." (Isabel MacBeath Calder, Activities of the Puritan Faction of the Church of England, 1625-33, 1957, p. 59) This man was the only "de jure" or rightful successor to the Empire according succession rules. And in this position, owning all the privileges of the Empire, he legitimately sold all his "de jure" royal and imperial rights, titles and prerogatives, "which were genuine," to Charles VIII, the King of France, in 1494. (http://web.archive.org/web/20030404070252
It should be pointed out as Jean J. Burlamaqui (1694–1748), one of the founders of international law, explained that, "they [patrimonial kings and princes] are permitted to share, transfer, or alienate [their sovereignty] . . . [In other words, a] prince shall have full right [and prerogative] to dispose of the crown [his kingdom or principality], as he shall think proper." (www.constitution.org/burla
/burla_2107.htm) To read further on this well-known right, see the answer to question number thirty (#30) in Part II: "Some experts believe that monarchs could never cede, sell or alienate their realms." The answer shows example after example of this common practice.
After Andreas Paleologue sold his rights to the King of France, he then sold the same rights, which he no longer possessed, to the Ottoman Emperor Sultan Bayazis II, and to Ferdinand II of Aragon and Isabella of Castile. This is the first recorded sale of fake or counterfeit titles we have on record. (http://en.wikipedia
Foncomagne has published the original draft of this act of cession which is in the Library of Paris. See Mem. de l'Acad. d. Inscript., XVII., 539-78 (Paris, 1751); DELAbOrDE, 405, gives a portrait of Charles, adorned with Imperial Insignia, out of the Coll. Gaignieres d. Bibl. Nat. t BUrCharDI Diarium, II., 226 seq.; Sanudo, Spediz., 192 (Dr. Ludwig Pastor, The History of the Popes: from the Close of the Middle Ages, vol. 5, 1902, p. 461)
Cession is recognized as a valid way to permanently transfer legal or "de jure" sovereignty over a nation, kingdom or empire. Please see the following questions in Part II of the article "Sovereignty: Questions and Answers:"
(30) Some experts believe that monarchs could never cede, sell or alienate their realms.
(31) But I thought sovereignty was inalienable?
(32) Yes, it is obvious sovereignty can be sold, at least in olden times, but can a "de jure" sovereign sell his sovereignty? I believe the only example of such is Andreas Palaiologos, who sold all his "de jure" imperial rights to the Byzantine Empire to the King of France.
[Andreas] Paleologus, the nephew of Constantine, the last Christian emperor, [ceded] his right to the whole empire of Constantinople. The act of sale being drawn up by two notaries, and ratified, Charles [VIII of France] assumed the robes and ornaments of the imperial dignity, and made no scruples in claiming the imperial rights vested in him by virtue of this purchase. (Ward, Law ef Nations, vol. 2, pp. 260-262 ; Garnicr, Hist, de France, liv. 1, pp. 429, 461, 494; Russell, Hist Modern Europe, vol. 1, pp. 185, 472; White, Hist. of France, p. 208.) (Henry Wager Halleck, International law: Rules Regulating the Intercourse of States in Peace and War, 1861, pp. 128-130)
Two kings later, under Francis I, the Imperial Crown was still being claimed. That is, these kings claimed that the kings of France were the rightful emperors of Constantinople and the Byzantine Empire. Not until Charles IX in 1566 did the claim come to an end as a result of disinterest. This king wrote that the imperial title ". . . is not more eminent than that of king, which sounds better and sweeter." (David Potter, A History of France, 1460-1560: The Emergence of a Nation State, p. 33) This disinterest was the equivalent of an abandonment, because both he and his successors failed to maintain the claim.
Law Professor Noel Cox of Auckland University explained that, ". . . Time . . . erodes the de jure authority [or sovereignty] of an exile [a deposed monarch] . . . through desuetude." (Letter of January 21, 2010) Erode means "destroyed by slow consumption." (http://thesaurus.com) That is, if the "de jure" sovereign does nothing, which is "desuetude" --- doesn't even use his titles or arms, they are lost. In other words, "use it or lose it," because estoppel or preclusion sets in through the principle of silence and acquiescence, when one should have protested. Dr. Cox also declared, "In principle international law recognizes extinctive prescription, where one sovereign state loses pre-existing rights to another, through failure to assert them." (January 11, 2011 letter) So there is both a recognition of "prescription" and the permanent loss of royalty "in principle." But what does "in principle" mean. A principle is:
. . . an accepted or professed rule of action or conduct . . . a fundamental, primary, or general law or truth from which others are derived . . . a fundamental doctrine or tenet; a distinctive ruling opinion . . . [a] guiding sense of the requirements and obligations of right conduct . . . a determining characteristic of something; essential quality. . . . (http://dictionary.reference.com)
In other words, "In principle international law recognizes extinctive prescription, where one sovereign state loses pre-existing rights to another, through failure to assert them," means that this is a fundamental truth that is rock solid. Such actions as acquiescence or a failure to assert rights, as the French king did, communicates abandonment or a full and complete legal surrender to the usurper; such that, the deposed monarch or his successors can no longer make the claim of having a valid royal prerogative. It is irretrievably lost through the ancient and modern rules of "prescription." (See the rules of "prescription" in the article: "Sovereignty: Questions and Answers" Part I and Part II)
Conclusion on Sovereignty
in the Byzantine Empire
All sovereignty from the Byzantine Empire was extinguished from the late 1500's. All claims, therefore, based on this ancient sovereignty is impossible as no legal sovereignty survived its total ruin or lapse into extinction. This is based on the fact that (1) previous to the 1300's sovereignty was not hereditary, and therefore it was impossible to pass down on a "de jure" basis as there is no legal and lawful mechanism for such; hence, all dynastic claims from before this time are null and void --- you cannot bequeath to your heirs something you do not own or possess, (2) all claims after the 1300's or the 14th century are empty as rightful sovereignty went down hereditary lines from that time on, (3) the last rightful heir and successor to all the imperial prerogatives, Andreas Palaiologos, sold all his to rights to France in 1494, and (4) the French continued the claim for several generational reigns and then lost interest in it and failed to maintain or keep their "de jure" rights alive and well. According the ancient law of "prescription," such actions establish permanent forfeiture. These imperial and royal rights are now extinct. No Byzantine sovereignty exists to make any claim on. Those who do claim it are simply claiming something that doesn't exist. Their claims are bogus and completely false.
Based on the above historical observations, all modern claims to sovereign honors, such as, being a "de jure" emperor or offering knighthoods in the name of either of these ancient empires, is barren and void of any legitimacy. All rights were lost and have ceased to exist. This important information should be helpful to anyone interested in groups that claim otherwise.
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