It is safe to say that the resolutions of the Westphalian peace conference that dealt with the Empire's supreme courts were not among the provisions posterity considered of historical importance and worth commemorating. [1] For farmers and town-dwellers too, who had suffered through and survived a long war, the silence of the guns must surely have been of greater existential significance than the peace treaty's provisions on the imperial justice system, whose finer details and wider consequences were scarcely comprehensible to the layman. The Justizpunkt, i.e. those provisions of the Treaty that concerned the justice and court system, was, and remains, a topic for specialists. The diplomats attending the Peace Conference, however, all of whom were well versed in the law, were fully conscious of the relevance of the punctus justitiae they had negotiated. On 3 March 1648, the conference at Osnabrück signed the final document on the Justizpunkt, which subsequently became part of the Peace Treaty.

The conclusion of this part of the Treaty gave rise to "such emotion among the envoys that they could not hold back tears of joy and marvelled at the fact that it had been the sacred justice system, the fundament of the State, on which, after so much fighting and bloodshed, all had been able to agree to everyone's complete satisfaction, being confident and hopeful that posterity would not allow this sacrosanct contract to come asunder [...], but would strive always to accord it the dignity and high-standing it is due by the honour and power of such a great State and Empire." [2] The emotions and comments of the conference participants express the significance of the agreement and the struggle that preceded it far better than the sober language of the corresponding clauses in the Treaty, which make no reference to the story behind their making. The gains and losses made by the two sides in this particular arena determined the form and content of the entire imperial constitution. The issues underlying the almost three-year long struggle about the number of supreme courts in the Empire, their jurisdiction and the system of appointment, included, among other things, the Emperor's status in the Empire, his relationship with the Estates and that of the confessions with each other. At the height of the controversy the very unity of the Empire was at stake: the unity of the Empire as a political and constitutional system had to be preserved; the unity of the law, which had been lost during the religious wars of the confessional age, had to be restored. To what extent the Peace negotiations on the Justizpunkt were burdened by these ambitious objectives becomes clear only if we consider the fact that from the late 16th century the irreconcilable differences of the confessions regarding the jurisdiction of, and appointments to, the Empire's two supreme courts had been at the heart of the profound constitutional crisis of confidence that was one of the internal German causes of the Thirty Years War.

We cannot understand these dimensions of the of fiercely debated Justizpunkt unless we take a look far back into the 16th century. At the Diet of Worms of 1495, held at the height of the reform of the empire, the Estates had through persistence and obstinacy persuaded King Maximilian I to establish an Imperial Chamber Court (Reichskammergericht), which existed separately from his court and was the central and supreme court of the Empire. It included a constitutional novelty, namely participation by the Estates in the uppermost levels of the justice system. Even though the Emperor remained unchallenged in his position as supreme authority of the Empire's justice system, a typical feature of the Chamber Court, which was fully formed by 1555, was that it merged structural elements of the monarchy and Estates; as time went by, the latter became increasingly more important. The constitutional dualism of Emperor and Estates was especially manifest in the appointments to the Kameralkollegium, i.e. the Court in the restricted sense. The Chamber Judge, who did not take part in deliberations over verdicts and was the Emperor's official representative at the Court, was also both the most prominent and only embodiment of the monarchic element. After a prolonged process of clarification, he and the two - later three - Presidents of the Court, who acted as deputies of the Chamber Judge and like him were chairmen of the senate, all came to be appointed by the Emperor. In contrast, all appointments to the post of assessor (what we today would call a judge), were a reflection of the dualist system the constitutional developments of the late Middle Ages had produced under pressure from particularist forces. While in the earlier central courts the "judges" had still been appointed exclusively by the Emperor, after 1495 it was the Estates who decided who would sit on the Chamber Court. In the presentation system used to appoint assessors, a procedure which had emerged between 1507 and 1521, only a few positions remained at the Emperor's discretion. All other presentation rights were distributed among the Electors and Circles of the Empire: an expression of the fact that the Estates' constitutional ambitions had won the day.

The monarchy reacted to these developments without delay. On the basis of plans drawn up by Maximilian I, Emperor Charles V (whenever he resided in the Empire) and his brother, who had been governor under King Ferdinand I, created the Hofrat [Court Council] - an institution clearly intended to demonstrate their undiminished authority over the courts. When Ferdinand I became Emperor in 1556, his Royal Hofrat was transformed into a permanently active Imperial Hofrat. From its inception this Hofrat had jurisdiction over legal cases (although initially at a much smaller scale) and thus competed with the competence of the Imperial Chamber Court. Finally, Ferdinand I in 1559, without consulting the Estates, issued the Reichshofratsordnung [rules of the Imperial Aulic Council], thus in effect establishing a second supreme court in addition to the Imperial Chamber Court, which was supported jointly by the Emperor and the Estates. The Imperial Aulic Council contained the monarchy's counterparts to all the constitutive hallmarks of the Chamber Court. It was completely removed from the influence of the Estates, and both appointments to and the financing of the Aulic Council were exclusively at the discretion of the Emperor.

In the long term, this dual system might have been able to give adequate expression to the political and constitutional structures of the Empire, had it not been for the new confessional dualism which during the Reformation put an end to the congruence of the constitution of the courts and imperial constitution no sooner than that congruence had been achieved. The Edict of Augsburg issued in 1530 by the Catholic majority in the Imperial Diet had defined any reformational change as a breach of the Landfrieden [peace law]. For the Protestant Estates this meant prosecution before the courts, in extreme cases even outlawry. In religious trials the Imperial Chamber Court consistently based itself on "the catholic intepretation of the Empire and the law" [3]. As the uniformly catholic composition of the Chamber Court, quite apart from the legal reality, was one of the reasons for its bias in this "legal battle", the Protestant Estates in vain attempted to put an end to the trials and rejected the Court's jurisdicion in religious disputes. From 1540, if not earlier, they also demanded to be allowed to present jurists of their own faith to serve as assessors at the Court. They did not succeed in this until the Peace of Augsburg, which after two wars finally granted the Estates belonging to the Augsburg Confessionrecognition under imperial law. The Edict of Augsburg of 1555 bound the the Imperial Chamber Court to consider and apply the Religious Peace as substantive law. It further provided that in future it would be possible to present and appoint both Catholic and Protestant Chamber Judges, Presidents and Assessors and other Court staff. This concession, however, did not translate into numerical parity between the confessions, which the Protestant Estates, at any rate, had never demanded. In 1555 they achieved nothing more nor less than the right of Protestants to be admitted without discrimination to - theoretically - all positions at the Chamber Court. In practice, however, the Emperor's choice of confession and the fact that most of the Estates were Catholic ensured that in 1555 the Chamber Judge, Presidents and majority of assessors would continue to be Catholic, in addition to the chancellery of the Chamber Court, which was in the hands of the Elector of Mainz. A few years later, the Protestants achieve another success. The visitation of the Chamber Council of 1560 ordered that as far as possible the two confessions should be equally represented in senates hearing disputes related to the Peace of Augsburg. Therefore, in the name of fairness, the principle of equality laid down in the Peace of Augsburg was for the first, and for many years only, time advanced to numerical parity of the confessions in a small but politically significant part of the Chamber's constitution, so as to put an end to confession-based majority votes on religious issues. The foresight and promise of this solution were not revealed until 1648.

It should come as no surprise, therefore, that in 1555, as a result of the Peace of Augsburg, it was only the composition, internal organization and jurisdiction of the Chamber Court that were redefined under imperial law. After all, only the Chamber Court had become active during the religious trials of the Reformation. The rise of Ferdinand I's Hofrat to imperial Reichshofrat was not to take place until after 1556. Accordingly, the Protestant Estates at the time of the Treaty of Passau and Peace of Augsburg were looking only to the Chamber Court. Because of the settlements of 1555 and 1560 the Chamber Court appeared exceedingly well equipped to adopt an unbiased position even in religious conflicts and for its decisions to be accepted by parties from either confession who were seeking justice before the Court. The fact that the Chamber Court was unable in the long term to carry out its functions despite the best intentions was related to one of the fundamental problems of the Peace of Augsburg. Because the Court was obliged to come up with a political compromise and secure external peace even though the fundamental confessional dispute remained unresolved, some of its central provisions were incomplete, unclear and ambiguous. This act of "legal dissimulation" for the sake of peace had its price. [4] It burdened the Confessional Age with a dispute about which was the "rightful" law, which was the "correct" interpretation of a Religious Peace whose individual clauses and overall interpretation were both the subject of fierce arguments between the confessions. Faced with this split interpretation of the law, the Chamber Court's assigned task of settling religious disputes on the basis of the Religious Peace was tantamount to squaring the circle. It was inevitable that the losing party would consider the Court's verdict as biased. True, if the legal position was reasonably clear the Court was able to protect the weaker party or at least pour oil on the waves of conflict. Even the assessors, however, were caught up in their respective confessions' interpretation of the law, despite all efforts to remain impartial; as a result, in the religious senates, where the confessions both fielded exactly the same number of representatives, decisions on borderline cases became deadlocked time and again because of tied votes. By no later than 1580, escalating political tensions among the confessions started to have a marked impact on the Chamber Court. Especially religious trials with a significant political component, such as the dispute about the Reformationsrecht of Reichstädte [the free cities of the Empire] or the progressive confiscation of freehold monasteries and convents, increasingly led to stalemates in the senates. The Protestants, who felt that the advancing Counter-Reformation placed them in an increasingly defensive position, considered that they were the ones who suffered most from these developments. Towards the late 16th century the situation in the courts reached a peak and triggered a deep constitutional crisis. The cessation of regular visitations to the Chamber Court in 1588 (which had acted as instance of appeal), the Chamber Court's verdict in the Vierklosterstreit - which was fiercely resisted by the Protestants - their subsequent decision to bring about the disintegration of the extraordinary Reichsdeputation [Imperial Diet] of 1601, and the rising number of pending appeals against Chamber Court verdicts: all were stages in the process that culminated in this crisis which finally, in the early 17th century, ended up paralysing the Court's jurisdiction over a wide range of subject matters.

By order of the Emperor, the other supreme judicial authority, the Imperial Aulic Council, had for a long time abstained from hearing religious cases, so as to prevent the Emperor's court from becoming embroiled in the squabbles of the confessions. However, as a result of the growing blockage within the Chamber Court, the number of cases, especially concerning important issues such as religious disputes, tried under the jurisdiction of the Aulic Council rose from the late 1580s onwards. This development was primarily to the Protestants' disadvantage, as in cases involving interpretation of the Peace of Augsburg, the Aulic Council, which consisted largely, if not exclusively, of Catholic assessors, the Catholic interpretation tended to prevail. Some of the spectacular verdicts by the Aulic Council which were in favour of the Catholic side and sent shockwaves through the entire Empire were the Kapitel dispute of Strasbourg, the case of the free city of Aachen, and the dispute over Donauwörth. As a result of these verdicts, Protestants came to regard the Aulic Council as a tool of the Counter-Reformation.

The more the Protestant Estates felt threatend by religious trials heard by the imperial courts, the more their attacks and complaints were accompanied by concrete demands to put an end to the (real or perceived) bias of the Empire's justice system. In the decades preceding the Thirty Years War neither the Protestant side nor the Emperor or Catholics had sufficient insight to recognize that only a political solution, that is an authentic clarification and completion of the disputed Peace of Augsburg arrived at jointly by the Emperor and all the Estates, would lead to one interpretation of the law by both confessions and thus resolve the problems underlying the religious trials. Although attempts to this effect were made during the war, the necessary revision of substantive law was not carried out until the Peace Conference. Until then the Protestants (always in the context of other complaints related to religion) concentrated on altering the confessional composition of the Imperial Courts in their favour and on fighting the jurisdiction of the Aulic Council which competed with that of the Chamber Court. In the late 1670s, when the first isolated demands were raised by Protestants, their potential ability to trigger the disintegration of political and constitutional structures was barely recognizable. Initially, the Protestants themselves were hardly aware of it. The outlines of a new constitutional proposal, which the Catholic side was to an extent correct to consider revolutionary, did not become visible until after individual complaints had progressively consolidated into a system of clearly discernible underlying principles.

In the final two decades of the 16th century a modified understanding of "religious equality" emerged as the common denominator of the demands, which aimed to achieve changes in the composition of the highest courts. This "religious equality" referred to numerical parity, that is for an equal number of representatives from both confessions to be sitting in the courts. The principle of religious equality, outlines of which were already presented in the Peace of Augsburg but which at that time had not yet fully matured and been elevated to the status of programmatic fundamental principle, was developed further over the next 90 years. For obvious reasons most of this work for a long time was undertaken exclusively by Protestants. By the mid-17th century the earlier, very general and imprecise notion of "equality of the confessions" (which encompassed concepts such as equal status, equal value, fairness and justice) had become "strictly reciprocal equality, even as regards issues of secondary importance". [5] The imperial justice system played an important part in this process, by setting examples and offering an arena for experimentation.

In the late 16th century, Protestant demands for equality concentrated initially on the Imperial Chamber Court, firstly because this Court had become a target of Protestant criticism long before the Imperial Aulic Council, and secondly because the Estates considered it primarily "their" court, the concrete expression of their proposed constitutional model. Nevertheless, at first the demand for numerical parity was not addressed at the assessors (parity already existed in the religious senates), but at those positions and important offices within the Chamber Court to which, a few exceptions apart, only Catholics had been appointed so far: they included the Chamber Judges, Presidents and the chancellery. The first request, based on the decision of the Diet of Augsburg of 1555, also to fill these positions with Protestants was formulated in 1576. In the early 1580s, at the instigation of the Palatine electorship, it transformed into a demand for strict confessional parity. From the outset this request was resolutely rejected by the Emperor and Catholic Estates. They justified their decision on the one hand with the imperial iura maiestatis, on the other hand with a rather legalistic reference to the rules of the Chamber Court of 1555, under which the Emperor alone had the authority to appoint the chamber judges and presidents, while nominations to the chancellery fell to the imperial arch-chancellor. As a result, neither one nor the other could be ordered to take into account the confession of the appointee. Even the resolution of the Diet of Augsburg of 1555 did not contain any provisions that could be interpreted in this way. The request to achieve confessional parity regarding the post of Chamber Judge by alternating between Catholic and Protestant office-holders, was, above all, an attack on the Emperor's position of authority: the Chamber Judge represented the Emperor and presided over the Court on his behalf. Alternating between Protestant and Catholic chamber judges, however, would have given the Emperor a confessionally neutral, non-partisan role, with unforeseeable and, from the Catholic point of view prejudicial, consequences for both the interpretation of the Emperor's position and even the imperial constitution.

In asking for confessional parity in appointments to directorial posts and positions in the chancellery, Protestants did not merely aim to put into practice some abstract principle of equality. They also suspected that even though these positions were not concerned with the actual dispensing of justice, they would, in the course of their tasks and duties, contribute to the bias of the Court in religious trials. Constitutional demands were thus closely linked to a need for more security.

In 1612 and 1613, the request for confessional parity was extended to the entire body of assessors. At the Rothenburg Unionstag [union day] of 1613, the members of the Unionspartei [a militant Protestant group], under the leadership of the Palatine electorship, already held complex discussions about how numerical confessional parity among all Chamber Court assessors could be brought about in practice. The system of presentation (valid since 1521), combined with the confessional imbalance among the Estates, always produced a Catholic majority among the assessors. One of the Protestants' proposed ways of reaching their goal, was for a certain period to present only Protestant candidates as assessors whenever a vacancy arose. The presentation of "papist" assessors was to cease until an equal number of Catholics and Protestants had been appointed to the college of the Court. Thereafter, whenever a position had to be filled, it would simply be a case of appointing a candidate who had the same religion as the deceased person. [6] Under this proposal the Catholic Estates themselves were expected to present Protestant jurists if the situation required it. At the peace negotiation s held at Pirna and Prague in 1634/35 the Protestants indeed officially put forward this "solution" - without any success.

Even before the Thirty Years War, the Catholic and Protestant perceptions of the nature of the imperial constitution clashed over the irreconcilable dispute about universal religious parity among all Chamber Court staff. In 1613 the Protestants considered it unbearable that their requests for parity should have been rejected and the Catholic Estates should have refused to relinquish the majority principle. Their opponents, in turn, felt that "a knife has been placed to the throat of Catholic religion, because of Protestants' full and final resolve to expand the religious peace on their terms [...], and to force about, violently and at all cost, paritatem votorum at the Chamber Court and the Imperial Diets, in addition to the Freistellung [freedom of religion] they have already obtained." [7]

On the eve of the Thirty Years War, a similarly irreconcilable and bitter battle was fought for the other supreme imperial court, the Imperial Aulic Council, whose religious trials were becoming increasingly dangerous for the Protestants. Their main complaint, apart from the fact that the Council was composed of Catholics and formed an integral part of the political system of the Emperor's court, was that the it tried cases, which under imperial law and, above all, under the rules of the Chamber Court, fell under the exclusive jurisdiction of the latter instance. In the view of the Protestants, religious trials in particular ought to be tried before the Chamber Court. Indeed, at the time, the jurisdiction of the Aulic Council had not been defined in any way. In the years immediately before and after 1600, parallel to a general hardening of the fronts, two main demands emerged from the bulk of complaints lodged by the Protestant Estates: that greater consideration should be given to Protestant candidates in appointments to the Aulic Council, and that its jurisdiction should be trimmed in all areas where it competed with that of the Chamber Court. From the late 16th century onward, the Protestant Aktionspartei [a militant Protestant group], lead by the Palatine elector, ever more vigorously advocated a proposal which it eventually presented in an uncompromising fashion at the Diet of Regensburg in 1613. It held that the Chamber Court was the only supreme court of the Empire, and that the Aulic Council should not be granted the same position. Simultaneously, the Protestant Estates emphasized that their objection in no way intended to cast doubt over the Emperor's jurisdiction as, with the exception of some special cases that were reserved for the Aulic Council, the Chamber Court carried out its function in the name and under the seal of the Emperor. All these proposals displaced the Aulic Council to the margins of the imperial justice system. By fighting against the Aulic Council's jurisdiction in religious matters, the Protestant Aktionspartei attempted to reverse a constitutional development from which the Emperor had purposefully excluded the Estates: the establishment of an Aulic Council heavily influenced by the monarchy as counterbalance to the Chamber Court, in which the Estates predominated. Once again, the spirit of the Reformation was in the air.

From the first decade of the 17th century, the protagonists on the Protestant side started to strive for confessional parity in the Aulic Council. At the Unionstag of Rothenburg (see above), this demand was adopted by all members of the Union. A special justice commission even went so far as to suggest that the aim should be for the Estates to present candidates for positions at the Aulic Council, as was the case at the Chamber Court. This would have meant transferring the dualistic constitutional structure of the Chamber Court to the Aulic Council, that bastion of monarchic power. As early as 1608, and again in 1611, the Palatine elector combined plans aiming for the religious parity of the college of the Aulic Council with even more radical objectives: not only the Aulic Council but even the Emperor's Secret Council (Geheime Rat) was to be composed of an equal number of Catholics and Protestants. This would have taken the Protestant concept of strict confessional equality throughout the Empire deep into the heart of the Emperor's power structures. At the Diet of Regensburg, however, the demand for religious equality in the Aulic Council was withdrawn, so as to enable the Protestant at least to reach other goals, such as full parity in the Chamber Court. No matter how much the Protestant Aktionspartei might have wished for equal representation in the Aulic Council, in this case (unlike in that of the Chamber Court which was already strongly influenced by the Estates) it still had a degree of reservation about asking the Emperor for religious parity in the Aulic Council and even the right of the Estates to present their own candidates: "The Hofrat advises the Emperor, not the Empire." [8]

Just as the Protestants were spooked by visions of an Aulic Council composed of Catholic zealots, the Catholic Estates cultivated their no less hallucinatory fear of confessional parity in the Council. In 1613, even the presence of a Protestant minority was considered a bad thing. In a report to the Emperor written in spring 1614, the Bavarian councillor Wilhelm Jocher described the then demands of the Protestant Aktionspartei as "such that they would in effect not only remove all Catholics but also all existing imperial laws, and even the very office of the Holy Roman Emperor. Then, once the Emperor, with a few exceptions, no longer has any jurisdiction, authority or power [...], they will, in effect, soon have the upper hand in the Holy Roman Empire and more power than the Emperor himself; they will also run the Empire and the courts as they see fit, and once they have taken over all the other ecclesiastic possessions, and Catholics have been suppressed and left without recourse to the law, they will have attained their desired peace." [9] The respective perceptions of what kind of imperial and religious constitution would bring about peace or war could not have been more different. We cannot appreciate the solutions negotiated at the Westphalian Peace conference unless we remember how bitterly Catholics and Protestants, who on the eve of the Thirty Years War were embroiled in a deep constitutional crisis characterized by profound mistrust, defended their own positions and bedevilled those of the opposing side.

During the first two phases of the Thirty Years War, the victories of the armies of the Emperor and Liga silenced all Protestant demands for a remodelling of both the imperial and religious constitution and the imperial justice system. Only the victorious Swedish campaign in the early 1630s enabled the Protestant Estates to return to their original proposals. In fact, the constitution put forward by Hessen and Kassel from 1631 was imbued with an even more radical spirit. Among other things it envisaged election of the Emperor by the Protestant Estates only; an end to trials being held before the Imperial Aulic Council; for the Estates to be tried exclusively before the Chamber Court; "for greater security and assurance" the Chamber Court was to be "composed entirely of Protestant presidents and assessors" - the Catholic Estates who were entitled to present candidates to the Chamber Court were to be obliged to present only Protestant candidates for the post of assessor; and in future, cases which up to that point had fallen under the exclusive jurisdiction of the Imperial Court (relating to feudal matters, etc.) should no longer be tried by the Emperor alone but be heard before and discussed by all the Estates. [10] The end result of this programme, which sought to cement a reverse version of the inequality Protestants had fought so vigorously, would have been a justice system under Protestant influence in an Empire dominated by Protestants. However, the devastating defeat of the Swedes in the battle of Nördlingen of September 1634, after which the Emperor was able to take back all of southern Germany, meant that at the peace negotiations held in Pirna and Prague in 1634/35 even comparatively moderate demands (the Saxon electorship requested confessional parity in the Chamber Court and Aulic Council and raised the issue of the Aulic Council's jurisdiction) were refused. At the time of the Peace of Prague, despite a degree of rapprochement between the two sides, the time was not yet ripe for a fundamental restructuring of the judicial, imperial and religious constitution on the basis of confessional equality. Even immediately before the start of the peace conference at the Deputationstag of Frankfurt held from 1643 to 1645, which had been called specifically to address shortcomings in the justice system, the Protestant deputies were unable to break through the defenses of the Catholic majority. Instead, the inflexibility of the two parties showed that religious parity in the imperial courts, the jurisdiction of the Aulic Council over religious cases and other constitutional aspects of the imperial justice system could be solved only as part of an extensive revision of the imperial and religious constitution C and under the pressure of all the European powers party to the conflict.

At the Westphalian Peace Conference of Münster and Osnabrück, the Justizpunkt for two and a half years remained the subject of heated debate. In their Gravamina Evangelicorum, submitted in December 1645, the Protestants, without, for tactical reasons, giving any recognition to the European power-political reasons behind the War, again highlighted the fact that their complaints about the justice system, which they had been voicing for years and which had still not been addressed, had been a principal cause of destruction and war in the Empire and one of the main obstacles to peace. Then the Protestant Estates came forward with a programme for the reform of the imperial justice system which was far more radical than any of their earlier projects. They suggested that two additional supreme imperial courts should be created next to the Chamber Court and Aulic Council. The entirely practical and seemingly innocuous justification for this expansion was that it would relieve the two existing supreme courts, as well as shorten the journeys and lower the travel costs of the opposing parties and the Court's messengers. However, it was plain to see that the proposal would have had a potentially devastating effect on the constitutional and religious issues. Under the plan, the four courts, as "the Emperor's and Empire's [!] supreme courts and universalia dicasteria", [11] would enjoy equal jurisdiction, power and status. Each court would be assigned a territory in which it would have exclusive jurisdiction. The Aulic Council was to be restricted to the Austrian and Bavarian Circles, the Chamber Court to the two Rhenish Circles and the Circle of Burgundy. One of the two newly established courts would be assigned both Saxon Circles and the Circle of Westphalia, while the other one was given the Circles of Franconia and Swabia. The legal basis of all four courts were to be the Chamber Court regulations including all amendments thereto. The judges were to be recruited from among the Circles of the Empire, and presented and paid for by the Estates of these Circles. An equal number of Protestants and Catholics was to be appointed to all offices. In the event of borderline cases or a tied vote between Protestant and Catholic judges, the case was to be referred to the Imperial Diet for amicable settlement. The Protestant Estates justified their demand for consistent religious parity with programmatic words that gave the impression that they were talking about a fundamental right: their demand sprang from an extreme need, was reasonable and fair, in accordance with international law, and a stabilizing and unifying factor in a free "Respublica". Protestants had the same rights as Catholics to take an active part in the State, they were all, from the highest to the lowest, equal members of the one Empire (aequalia membra unius Imperii). This aequitas required that Protestants and Catholics alike should be admitted to the offices of the State without discrimination on religious grounds. [12] These principles were diametrically opposed to the Roman Catholic interpretation of the nature of the Empire. Not only that: they also would have a serious impact on the position of the Empire and, with it, that of the Aulic Council. Even though under the proposed system comprising four equal and supreme courts of the Empire, all citations, mandates and decrees were to be issued in the name and under the seal of the Emperor, as had already been the case with the Chamber Court and Aulic Council. But even though the Emperor retained these rights, he was, for the most part, ousted from the new court system. Specifically the Aulic Council was stripped of its position of bastion of monarchic powers and instead subjected to the Reformational principles adopted by the Estates. Furthermore, by restricting the jurisdiction of the Aulic Council to one, uniformly Catholic Circle in the south-east of the Empire, the Protestants in one move resolved the particularly threatening issue of the Aulic Council's jurisdiction over religious cases, which had competed with that of the Chamber Court throughout the Empire. In essence, the Protestants' proposed reform of the justice system presented a decentralized Empire characterized by confessional parity and balance between the Estates and the aristocracy, with a weaker Emperor. The proposal carried the unmistakable signature of Hessen-Kassel and Braunschweig-Lüneburg - both instigators of far-reaching constitutional reforms. As the Emperor's and the Catholic deputies at the conference closed ranks, the Protestant side in June 1646 trimmed parts of their proposed reform of the justice system, which had been supported by Sweden and France. Now they suggested that only one additional imperial court should be established, for the Circles of Saxony and the Circle of Westphalia. In all other domains, however, the principles of the previous model based on four courts were retained. It came as little surprise that the objections of the Roman Catholic opposition persisted. From the Emperor's perspective, both the new and the original proposal would inevitably lead to the overthrow of the entire imperial constitution (ad eversionem formae totius Reipublicae). [13] From the summer of 1646, the position of the Protestant quarter gradually weakened; especially Estates loyal to the Emperor, lead by the Saxon electorate, increasingly distanced themselves from the project. The Brandenburg electorship also became disinclined, as it believed that Sweden's territorial claims would rob it of its Pomeranian heritage and, via the Swedish rights of presentation obtained through their rule of Pomerania, Bremen and Verden, feared a Swedish majority in the proposed third court. The envoy of the Brandenburg electorship at the conference in Osnabrück even had the impression that "they were about to divide the Empire into three parts, so as to allot one part to the Holy Roman Emperor, the imperial Court Counsellor and related Circles, the second part, including the Chamber Court in Speyer, to the French, and the third to themselves, the Swedish crown." [14]

Faced with so much resistance, including from their own side, and owing to special Swedish interests in this regard, the Protestants in late 1646/early 1647 dropped their proposal to establish an imperial justice system comprising three distinct components and resumed operating within the framework of the conventional dual court system. This change in approach, however, was subject to certain conditions. In the case of the Chamber Court, these were a raise in the number of assessors so as to improve the Court's functional capacity; like the chancellery, the new positions of assessor were to be filled on the basis of strict religious parity. Although the Emperor continued to appoint the Court's presidents, here too an equal number had to be appointed from both religions. Although it was initially suggested that the position of Chamber Judge be abolished, this proposal was abandoned at a later stage in favour of the system of alternation. The Protestants further wanted the Aulic Council's jurisdiction in religious matters to be revoked, in all other cases it was to compete with the Chamber Court. Appointments to the Aulic Council were also to be made according to the principle of religious parity by way of presentations made by and from among the Circles of the Empire. A proper system of visitation and appeal (with the majority of the deputation being drawn from among the Estates) was prescribed for the Aulic Council, like the one that had already been introduced at the Chamber Court. Both courts were to send difficult/borderline cases to the Imperial Diet. Seen against the Emperor's and Catholic position of the time, these demands, which relied on earlier concepts and were supported by Sweden, were still rather radical, especially as regarded the Aulic Council, which would have been transformed into one of the courts of the Estates.

From early 1647 until spring 1648 the conference for more than a year was the scene of fierce haggling about the Justizpunkt, and in particular the provision relating to the Aulic Council. The final result of this tug-of-war was a compromise with very different outcomes for the Chamber Court and the Aulic Councils. At the peace conference the Protestant side had eventually succeeded in ensuring that the long-disputed principle of aequalitas exacta mutuaque (IPO V, ' 1), the strict reciprocal equality of the two confessions, would from then on become a constitutive element of the imperial constitution. After a long struggle about proportions and percentages, the Protestants pushed through the idea that this principle would also apply to the system of presentation used for appointments to the (now 50) posts of assessor at the Chamber Council. There was one notable exception, however: in the final stages of the negotiations the Protestant Estates, in honour of the Emperor and as proof of their desire for peace, had to concede that the two assessors appointed by the Emperor himself should not be subject to the rule of parity. The principle of numerical parity would apply only to the 48 Chamber Court assessors (24:24) presented by the Estates of the Empire. To implement these provisions the negotiators eventually found a solution which, in view of the many wrong turns that had preceded it, seemed quite brilliant. In analogy to the structure of the Imperial Diet, which was divided into a Corpus Catholicorum and Corpus Evangelicorum, the existing single system of presentation was now replaced by two, one for each confession. Depending on which confession they had adopted at the time, the prince electors and Circles of the Empire were assigned to either one of the two new structures (a more complicated solution was found for mixed Circles). In this way it was exactly determined under imperial law which confession was attached to individual assessor posts. The two appointments that were at the discretion of the Emperor were integrated into the Catholic presentation structure, and therefore gave it a small majority (26:24) over its Protestant counterpart. The composition of the two presentation structures was considered an internal matter and left up to the confessional parties. However, the Protestants had to show not a little imagination to ensure that they were able to appoint assessors to all of the 24 posts to which they were entitled. With this consistent application of the principle of strict equality, separation and mutual non-interference in an area of seemingly secondary importance, the peace conference made a significant contribution to the settlement of the conflict. The words of praise quoted earlier in this article demonstrate that the negotiators certainly considered it of paramount importance. It is almost needless to say that the peace treaty of Westphalia also contained more detailed provisions for cases where appointments to the senates of the Chamber Courts were to be made on the basis of religious parity. The Chamber Court subsequently went even further by ensuring that in all trials heard before it, the two confessions were represented equally in the senates and among the speakers. In 1648, a compromise similar to the one arrived at between the Emperor's special rights and the concessions won by the Protestant Estates was struck for the directorates of the Chamber Court. Although the presidents, whose number had been raised to four, were still appointed by the Emperor, they too were made subject to the principle of parity (2:2). The post of Chamber Judge, however, which for constitutional reasons was considerably more important to the Emperor, remained as much out of Protestant reach as the Emperor's assessors; the reason lay in the principle cujus Religionis sit Imperator, ejus et debeat esse Judex, which the Emperor's envoys cited before the Swedish negotiators in February 1648: the Chamber Judge, as incarnation of the Emperor's supreme authority over the Chamber Court, had to belong to the same confession as the Emperor himself. [15] As was revealed at the next Imperial Diet, the Mainz electorate too refused any interference in its appointments to the chancellery of the Chamber Court.

After the Peace of Westphalia, however, the Court proper, i.e. the College of the Chamber Court, including the Chamber Judge, presidents and assessors, was once again a mirror of the changes in the imperial system, because it integrated both openness to the new principle of aequalitas exacta mutuaque and respect for the Emperor's position of authority. After 1648 the earlier political and constitutional dualism of Emperor and Estates and the later dualism of the confessions were balanced and reflected in an almost ideal way in the College of the Chamber Court. At last the imperial constitution, religious constitution and the constitution governing the courts were once again in concordance.

As regarded the Aulic Council, however, the Protestant Estates did not achieve what they had been demanding for many years, namely the application of religious parity among Imperial Court Councillors; even more so, appointments to the Aulic Council via presentations made by the Estates were out of the question. Although the Emperor did promise to recruit Protestant jurists for the Aulic Council, he did not commit himself to a set figure. The new body of rules governing the Aulic Council, which provided that six out of 18 Court Councillors should be Protestant, was issued by the Emperor in 1654 in exercise of his supreme authority. At least those few Protestant Councillors were to guarantee that an equal number of Court Councillors from both confessions could be drawn on in the event of debates and decisions concerning ecclesiastic and worldly cases on which the confessions disagreed. The Emperor also emerged victoriously from the battle about the jurisdiction of the Aulic Council, which competed with that of the Chamber Court and which the Protestants had fought for six decades, particularly as regarded religious issues. In view of the fact, however, that any cases heard by the Aulic Council which were in any way related to confessional issues were to be settled by parity-based procedures, the Protestant were able to accept the Emperor's victory.

Overall, the body of rules eventually agreed upon by the negotiators on 3 March 1648, which formed part of the final Peace Treaty (IPO V, ' 53-57), was light-years away from the downright revolutionary proposal for a reform of the imperial justice system that the Protestants had submitted in the first phase of the conference. Like the Peace of Westphalia in general, the punctus iustitiae kept the fundamental political and constitutional structures of the Empire. It was also in line with the laws of the courts that had emerged from around 1500 onwards as a result of the constitutional changes of the late Middle Ages and stabilized in the 16th century. Within the limits of these traditional structures, however, the reformers of the court system saw the lessons to be learned from the breakdown for confessional reasons of the imperial justice system, which had been a significant contributory factor to the crisis that shook the imperial and religious constitution on the even of the Thirty Years War. In view of the prevailing constraints, the settlement of the Justizpunkt at the peace conferences in Münster and Osnabrück was a formidable accomplishment in the art of adaptability. In and by themselves, however, changes in the organization of the courts, like appointment or voting procedures based on the principle of confessional parity, would scarcely have had a pacifying effect and restored faith in the confessional impartiality of the imperial justice system. Even though for Protestants they were an important expression of their interpretation of the constitution and measure to restore confidence, these changes were able to have a real impact only in combination with a simultaneous reform of the substantive legal bases applicable to future religious trials. By eliminating the unclear and ambiguous aspects of the Peace of Augsburg and filling the remaining gaps on the basis of absolute and reciprocal equality of the religious parties, the Emperor and Estates at the Westphalian Peace Conference overcame the religion-based split in the interpretation of the law and thus removed the underlying cause of the crisis of confidence that had been triggered by confessionalisation and the divisions between the confessions. Even after the conclusion of the Peace Treaty, the Empire's two supreme courts, in particular the Chamber Court, still had to cope with many problems, some of which were very serious. Unlike in the confessional age, however, these conflicts no longer constituted a threat to peace.

FOOTNOTES