Thus ended the first great chapter in the history of the Holy Roman Empire which Otto had founded in 962. In those three centuries the great fact had been its relation to the Papacy: in the last two of those three centuries the relation had been one of enmity. The basis of the enmity had been the papal claim to supreme headship of Latin Christianity, and to an independent temporal demesne in Italy as the condition of that headship. Because they desired supreme headship, the popes had sought to reduce the emperor’s headship to something lower than, and dependent upon, their own—to a mere fief held of St Peter: because they desired a temporal demesne, they had sought to expel him from Italy, since any imperial hold on Italy threatened their independence. They had succeeded in defeating the Empire, but they had also destroyed the Papacy; for the French aid which they had invoked against the Hohenstaufen developed, within fifty years of the fall of that house, into French control, and the captivity at Avignon (1308-1378) was the logical result of the final victory of Charles of Anjou at Tagliacozzo. The struggle seemed to have ended in nothing but the exhaustion of both combatants. Yet in many respects it had in reality made for progress. It had set men thinking of the respective limits of church and state, as the manylibelli de lite imperatorum et pontificumshow; and from that thought had issued a new conception of the state, as existing in its own right and supreme in its own sphere, a conception which is the necessary basis of the modern nation-state. If it had dislocated Germany into a number of territorial principalities, it had produced a college of electors to represent the cause of unity: if it had helped to prevent the unification of Italy, and had left to Italy the fatal legacy of Guelph and Ghibelline feuds, it had equally helped to produce Italian municipal independence.
A new chapter of the history of the Empire fills the three centuries from 1273 to 1556—from the accession of Rudolph of Habsburg to the abdication of Charles V. Italy was now lost: the Empire had now no peculiar connexionThe Empire from the election of Rudolph of Habsburg, 1273.with Rome, and far less touch with the Papacy. A new Germany had risen. The extinction of several royal stocks and the nomination of anti-kings in the course of civil wars had made the monarchy elective, and raised to the side of the emperor a college of electors (seeElectors), which appears as definitely established soon after 1250. With Italy lost, and Germany thus transmuted, why should the Empire have still continued to exist? In the first place, it continued to exist because the Germans still found a king necessary and because, the German king having been called for three centuries emperor, it seemed necessary that he should still continue to bear the name. In this sense the Empire existed as the presidency of a Germanic confederation, and as something analogous to the modern German empire, with the one great difference that the Hohenzollerns now derive from Prussia a strength which enables them to make their imperial position a reality, while no Luxemburg or Habsburg was able to make his imperial position otherwise than honorary and nominal. In the second place, it continued to exist because the conception of the unity of western Europe still lingered, and was still conceived to need an exponent. In this sense the Empire existed as a presidency, still more honorary and still more nominal, of the nations of western Europe. In both capacities the emperor existed to a great extent because he was a legal necessity—because, in Germany, he was necessary for the investiture of princes with their principalities, and because, in Europe, he was necessary, as the source of all rights, to bestow crowns upon would-be kings, or to act as the head of the great orders of chivalry, or to give patents to notaries. With the history of the Empire regarded as a German confederation we are not here concerned. The reigns of the Habsburg, Luxemburg andWittelsbach emperors belong to the history of Germany. Yet two of these emperors, Henry VII. and Louis IV., should not pass without notice, the one for his own sake, the other for the sake of his adherents, and both because, by interfering in Italy, and coming into conflict with the Papacy, they brought once more into prominence the European aspect of the Empire.
Henry VII., the contemporary and the hero of Dante, descended into Italy in 1310, partly because he had no power and no occupation in Germany, partly because he was deeply imbued with the sense of his imperial dignity. Coming as a peacemaker and mediator, he was driven by Guelph opposition into a Ghibelline rôle; and he came into conflict with Clement V., the first of the Avignonese popes, who under the pressure of France attempted to enforce upon Henry a recognition of his feudal subjection. Henry asserted his independence: he claimed Rome for his capital, and the lordship of the world for his right; but, just as a struggle seemed impending, he died, in 1313. During the reign of his successor, Louis IV., the struggle came. Louis had been excommunicated by John XXII. in 1324 for acting as emperor before he had received papal recognition. None the less, in 1328, he came to Rome for his coronation. He had gathered round him strange allies; on the one hand, the more advanced Franciscans, apostles of the cause of clerical disendowment, and inimical to a wealthy papacy; on the other hand, jurists like Marsilius of Padua and John of Jandun, who brought to the cause of Louis the spirit and the doctrines which had already been used in the struggle between Boniface VIII. and Philip IV. of France. Marsilius in particular, in a treatise called theDefensor Pacis, insisted on the majesty of the lay state, and even on its superiority to the Church. Perhaps it was Marsilius, learned as he was in Roman law, and remembering thelex regiaby which the Roman people had of old conferred its power on the emperor, who suggested to Louis the policy, which he followed, of receiving the imperial crown by the decree and at the hands of the Roman people. The policy was remarkable: Louis embraced an alliance which Frederick Barbarossa had spurned, and recognized the medieval Romans as the source of imperial power. Not less remarkable was the new attitude of the German electors, who for the first time supported an emperor against the pope, because they now felt menaced in their own electoral rights; and the one permanent result which finally flowed from the struggle was the enunciation and definition of the rights and privileges of the electors in the Golden Bull of 1356 (seeGolden Bull).
In this struggle with the Papacy the Empire had shown something of its old universal aspect. It had come into connexion with Italy, and into close connexion with Rome: it had enlisted in defence of its rights at once an Italian like Marsilius and an Englishman like Ockham. The same universal aspect appeared once more in the age of the conciliar movement, at the beginning of the 15th century. One of the essential duties of the emperor, as defender of the Church, was to help the assembling and the deliberations of general councils of the Church. This was the duty discharged by Sigismund, when he forced John XXIII. to summon a council at Constance in 1414, and sought, though in vain, to guide its deliberations. The journey which Sigismund undertook in the interests of the council (1415-1417) is particularly noteworthy. He sought to make peace throughout western Europe, acting as international arbitrator—in virtue of his presidency of western Europe—between England and France, between Burgundians and Armagnacs; but he failed in his aim, and when he returned to the council, it was only to witness the defeat of the party of reform which he championed. NationalThe Empire and the rise of the idea of national states.feeling and national antipathies proved too strong for Sigismund’s attempt to revive the medieval empire for the purposes of international arbitration: the same feeling, the same antipathies, made inevitable the failure of the council itself, in which western Europe had sought to meet once more as a single religious commonwealth. Early in the 15th century, therefore, the conception of the unity of western Europe, as a single Empire-Church, was already waning in both its aspects. The unity of the Church Universal was dissolving, and the conception of the nation-church arising (as the separate concordats granted by Martin V. to the different nations prove); while the unity of the Empire was proved a dream, by the powerlessness of the emperor in the face of the struggle of England and France.
Renaissance and Reformation combined to complete the fall which the failure of Sigismund to guide the conciliar movement had already foreshadowed. The Renaissance, revolting against the medievalism of thestudiumand notInfluence of the Reformation.sparing even thesacerdotiumof the middle ages, had little respect for the medievalimperium; and, going back to pure Latin and original Greek, it went back beyond even the classical empire to find its ideals and inspirations. But it is the coming of the Reformation, and with it of the nation-church, which finally marks the epoch at which the last vestige of the old conception of the political unity of the world disappears before the nation-state. Externally indeed it seemed, at the time of the Reformation, as if the old Empire had been revived in the person of Charles V., who owned territories as vast as those of Charlemagne. But Charles’s dominions were a dynastic agglomeration, knit together by no vivifying conception; and, though Charles was a champion of the one Catholic Church against the Reformation, he did not in any way seek to revive the power of the medieval empire. Meanwhile the reforming monarchs, while they cast off the Roman Church, cast off with it the Roman empire. Henry VIII. declared himself free, not only of the pope, but of all other foreign power; not only so, but as he sought to take the place of the pope with regard to his own church, so he sought to take the place of the emperor with regard to his kingdom, and spoke of his “imperial” crown, a style which recurs in later Tudor reigns.11The conception of one Empire passed out of Europe, or, if it remained, it remained only in an honorary precedence accorded by other sovereigns to the king of Germany, who still entitled himself emperor. In Germany itself the honorary presidency which the emperor enjoyed over the princes came to mean still less than before, when religious differences divided the country, and the principle ofcujus regio ejus religioaccentuated the local autonomy of the prince. When Charles abdicated in 1556, the change which the accession of Rudolph of Habsburg had already marked was complete: there was no empire except in Germany, and in Germany the Empire was nothing more than a convenient legal conception. The Reformation, by sweeping away the spiritual unity of western Christendom, had swept away any real conception of its political unity, and with that conception it had swept away the Empire; while it had also, by splitting Germany into two religious camps, and making the emperor at the most the head of a religious faction, dissipated the last vestiges of a real Empire in the country which had, since 962, been its peculiar home.
From 1556 to 1806 the Empire means a loose federation of the different princes of Germany, lay and ecclesiastical, under the presidency, elective in theory but hereditary in practice, of the house of Habsburg. It is an empireThe Empire as a German confederation.much in the same sense as the modern German empire, with a diet somewhat analogous to the modern Bundesrat, and a cumbrous imperial chamber for purposes of justice, hardly at all analogous to the highly organized system of federal justice which prevails in Germany to-day. The dissolution of the Holy Roman Empire into this loose federation had already been anticipated by the concessions made to the princes by Frederick II. in 1220 and 1231; but the final organization of Germany on federal lines was only attained in the treaty of Westphalia of 1648. The attempt of Ferdinand II., in the course of the Thirty Years’ War, to assert a practically monarchical authority over the princes of Germany, only led to the regular vindication by the princes of their own monarchical authority. The emperor, who had tried in the 15th century to be the international authority of all Europe, now sank to the position of less than inter-state arbitrator in Germany. That the Empire and the emperor were retained at all, when the princes becameso many independent sovereigns, was due partly to a lingering sense of quasi-national sentiment for amagni nominis umbra, partly to the need of some authority which should combine in one whole principalities of very different sizes and strengths, and should protect the weak from the strong, and all from France. But this authority only found itssymbolin the emperor. Such real federal authority as there was remained with the diet, a congress of sovereign princes through their accredited representatives; and the emperor’s sole rights, as emperor, were those of granting titles and confirming tolls. The Habsburgs, emperors in each successive generation, never pursued an imperial, but always a dynastic policy; and they were perfectly ready to sacrifice to the aggrandizement of their house the honour of the Empire, as when they ceded Lorraine to France in return for Tuscany (1735).
It needed the cataclysm of the French Revolution finally to overthrow the Empire. Throughout the 18th century it lasted, a thing of long-winded protocols and never-ending lawsuits, “neither Holy, nor Roman, nor an Empire.”End of the Holy Roman Empire.But with Napoleon came its destroyer. As far back as the end of the 13th century, French kings had been scheming to annex the title or at any rate absorb the territories of the Empire: at the beginning of the 19th century the annexation of the title by Napoleon seemed very imminent. Posing as the New Charlemagne (“because, like Charlemagne, I unite the crown of France to that of the Lombards, and my Empire marches with the East”), he resolved in 1806, during the dissolution and recomposition of Germany which followed the peace of Lunéville, to oust Francis II. from his title, and to make the Holy Roman Empire part and parcel of the “Napoleonic idea.” He was anticipated, however, by the prompt action of the proud Habsburg, who was equally resolved that no other should wear the crown which he himself was powerless to defend, and accordingly, on the 6th of August 1806, Francis resigned the imperial dignity. So perished the Empire. Out of its ashes sprang the Austrian Empire, for Francis, in 1804, partly to counter Napoleon’s assumption of the title of Emperor of the French, partly to prepare for the impending dissolution of the old Empire, had assumed the title of “Hereditary Emperor of Austria.” And in yet more recent times the German empire may be regarded, in a still more real sense than Austria, as the descendant and representative of the old Empire of the German nation.
What had been the results of the Holy Roman Empire, in the course of its long history, upon Germany and upon Europe? It has been avexata quaestioamong German historians, whether or no the Empire ruined Germany. SomeGeneral influence of the Empire.have argued that it diverted the attention of the German kings from their own country to Italy, and that, by bringing them into conflict with the popes, and by thus strengthening the hands of their rebellious baronage with a papal alliance, it prevented the development of a national German monarchy, such as other sovereigns of western Europe were able to found. Others again have emphasized the racial division of Saxon and Frank, of High German and Low German, as the great cause of the failure of Germany to grow into a united national whole, and have sought to ascribe to the influence of the Empire such unity as was achieved; while they have attributed the learning, the trade, the pre-eminence of medieval Germany to the Italian connexion and the prestige which the Empire brought. It is difficult to pronounce on either side; but one feels that the old localism and individualism which characterized the early German, and had never, on German soil, been combined with and counteracted by a large measure of Roman population and Roman civilization, as they were in Gaul and Spain, would in any case have continued to divide and disturb Germany till late in her history, even if the Empire had never come to reside within her borders. Of the larger question of the influence of the Empire on Europe we can here only say that it worked for good. An Empire which represented, as a Holy Empire, the unity of all the faithful as one body in their secular, no less than in their religious life—an Empire which, again, as a Roman Empire, represented with an unbroken continuity the order of Roman administration and law—such an empire could not but make for the betterment of the world. It was not an empire resting on force, a military empire; it was not, as in modern times empires have sometimes been, an autocracy warranted and stamped by the plébiscite of the mob. It was an empire resting neither on the sword nor on the ballot-box, but on two great ideas, taught by the clergy and received by the laity, that all believers in Christ form one body politic, and that the one model and type for the organization of that body is to be found in the past of Rome. It was indeed the weakness of the Empire that its roots were only the thoughts of men; for the lack of material force, from which it always suffered, hindered it from doing work it might well have done—the work, for instance, of international arbitration. Yet, on the other hand, it was the strength and glory of the Empire that it lived, all through the middle ages, an unconquerable idea of the mind of man. Because it was a being of their thought, it stirred men to reflection: the Empire, particularly in its clash with the Papacy, produced a political consciousness and a political speculation reflected for us in the manylibelli de lite imperatorum et pontificum, and in the pages of Dante and Marsilius of Padua. Roman, it perpetuated the greatest monument of Roman thought—that ordered scheme of law, which either became, as in England, the model for the building of a native system, or, as in Germany from the end of the 15th century onwards, was received in its integrity and administered in the courts. Holy, it fortified and consolidated Christian thought, by giving a visible expression to the kingdom of God upon earth; and not only so, but it maintained, however imperfectly, some idea of international obligation, and some conception of a commonwealth of Europe.12
The Holy Roman Empire of western Europe had in its own day a contemporary and a rival—that east Roman empire of which we have already spoken. From Arcadius to John Palaeologus, fromA.D.395 to 1453, the Roman empire was continued at Constantinople—not as a theory and an idea, but as a simple and daily reality of politics and administration. In one sense the East Roman Empire was more lineally and really Roman than the West: it was absolutely continuous from ancient times. In another sense the Western Empire was the most Roman; for its capital—in theory at least—was Rome itself, and the Roman Church stood by its side, while Constantinople was Hellenic and even Oriental. Between the two Empires there was fixed an impassable gulf; and they were divided by deep differences of thought and temper, which appeared most particularly in the sphere of religion, and expressed themselves in the cleavage between the Catholic and the Orthodox Churches. Yet, as when Rome fell, the Catholic Church survived, and ultimately found for itself a new Empire of the West, so, when Constantinople fell, the Orthodox Church continued its life, and found for itself a new Empire of the East—the Empire of Russia. Under Ivan the Great (1462-1505) Moscow became the metropolis of Orthodoxy; Byzantine law influenced his code; and he took for his cognizance the double-headed eagle. Ivan the Terrible, his grandson, finally assumed in 1547 the title of Tsar; and henceforth the Russian emperor is, in theory and very largely in fact, the successor of the old East Roman emperor,13the head of the Orthodox Church, with the mission of vengeance on Islam for the fall of Constantinople.
In the 19th century the word “empire” has had a large and important bearing in politics. In France it has been the apanage of the Bonapartes, and has meant a centralized system of government by an efficient Caesar, resting immediatelyModern Empires.on the people, and annihilating the powers of the people’s representatives. Under Napoleon I. this conception had a Carolingian colour: under Napoleon III. there is less ofCarolingianism, and more of Caesarism—more of a popular dictatorship. While in modern France Empire has meant autocracy instead of representative government, in Germany it has meant a greater national unity and a federal government in the place of a confederation. The modern German empire is at once like and unlike the old Holy Roman Empire. It is unlike the old medieval Empire; for it has no connexion with the Catholic Church, and no relation to Rome. But it is like the Holy Roman Empire of the 17th and 18th centuries—for it represents a federation, but a more real and more unitary federation, of the several states of Germany. The likeness is perhaps more striking than the dissimilarity; and in virtue of this likeness, and because the memory of the old GermanKaiserzeitwas a driving force in 1870, we may speak of the modern German empire as the successor of the old Holy Roman Empire, if we remember that we are speaking of that Empire in its last two centuries of existence. The modern “Empire of Austria,” on the other hand, does not connote an empire in the sense of a federation, but is a convenient designation for the sum of the territories ruled by a single sovereign under various titles (king of Bohemia, archduke of Austria, &c.) and unified in a single political system.14The title of Emperor was assumed, as we have seen, through an historical accident; and, though the Habsburgs of to-day are personally the lineal descendants of the old Holy Roman emperors, they do not in any way possess an empire that represents the old Holy Empire. In England, of recent years, the term “Empire” and the conception of imperialism have become prominent and crucial. To Englishmen to-day, as to Germans before 1870, the term and the conception stand for the greater unity and definitely federal government of a number of separate states. For the German, indeed, Empire has meant, in great measure, the strengthening of a loose federal institution by the addition of a common personal superior: to us it means the turning of a loose union of separate states already under a common personal superior—the King—into a federal commonwealth living under some common federal institutions. But the aim is much the same; it is the integration of a people under a single scheme which shall be consistent with a large measure of political autonomy. We speak of imperial federation; and indeed our modern imperialism is closely allied to federalism. Yet we do well to cling to the term empire rather than federation; for the one term emphasizes the whole and its unity, the other the part and its independence. This imperialism, which is federalism viewed as making for a single whole, is very different from that Bonapartist imperialism, which means autocracy; for its essence is free co-ordination, and the self-government of each co-ordinated part. The British Empire (q.v.) is, in a sense, an aspiration rather than a reality, a thought rather than a fact; but, just for that reason, it is like the old Empire of which we have spoken; and though it be neither Roman nor Holy, yet it has, like its prototype, one law, if not the law of Rome—one faith, if not in matters of religion, at any rate in the field of political and social ideals.
Authorities.—See, in the first place, J. Bryce,Holy Roman Empire(1904 edition); J. von Döllinger, article on “The Empire of Charles the Great” (inEssays on Historical and Literary Subjects, translated by Margaret Warre, 1894); H. Fisher,The Medieval Empire(1898); E. Gibbon,The Decline and Fall of the Roman Empire, edited by J.B. Bury. It would be impossible to refer to all the books bearing on the article, but one may select (i.) for the period down to 476, Stuart Jones,The Roman Empire(1908), an excellent brief sketch; H. Schiller,Geschichte der römischen Kaiserzeit(1883-1888); O. Seeck,Geschichte des Untergangs der antiken Welt(Band I., Berlin, 1897-1898, Band II., 1901) (a remarkable and stimulating book); and the two excellent articles on “Imperium” and “Princeps” in Smith’sDictionary of Greek and Roman Antiquities(1890); (ii.) for the period from 476 down to 888, T. Hodgkin,Italy and her Invaders(1880-1900); F. Gregorovius,Geschichte der Stadt Rom im Mittelalter(1886-1894; Eng. trans., London, 1894-1900); E. Lavisse,Histoire de France, II. i. (1901); J.B. Bury,History of the Later Roman Empire(1889); (iii.) for the Holy Roman Empire of the German nation, W. von Giesebrecht,Geschichte der deutschen Kaiserzeit(1881-1890); J. Zeller,Histoire d’Allemagne(1872-1891); R.L. Poole,Illustrations of Medieval Thought(1884); S. Riezler,Die literarischen Widersacher der PäpstezurZeit Ludwigs des Baiers(1874); J. Jannsen,Geschichte des deutschen Volkes seit dem Ausgang des Mittelalters(1885-1894); L. von Ranke,Deutsche Geschichte im Zeitalter der Reformation(1839-1847), andZur deutschen Geschichte.Vom Religionsfrieden bis zum dreissigjährigen Krieg(1869); and T. Carlyle,Frederick the Great(1872-1873). On the fall of the Roman Empire and the transition to the modern German Empire see Sir J.R. Seeley,Life and Times of Stein(1878); H. von Treitschke,Deutsche Geschichte(1879-1894); and H. von Sybel,Die Begründung des deutschen Reichs(1890-1894, Eng. trans.,The Founding of the Germ. Emp., New York, 1890-1891). For institutional history, see R. Schröder,Lehrbuch der deutschen Rechtsgeschichte(1894). On the influence of the Holy Roman Empire upon the history of Germany, see J. Ficker,Das deutsche Kaiserreich(1861), andDeutsches Königtum und Kaisertum(1862); and H. von Sybel,Die deutsche Nation und das Kaiserreich(1861).
Authorities.—See, in the first place, J. Bryce,Holy Roman Empire(1904 edition); J. von Döllinger, article on “The Empire of Charles the Great” (inEssays on Historical and Literary Subjects, translated by Margaret Warre, 1894); H. Fisher,The Medieval Empire(1898); E. Gibbon,The Decline and Fall of the Roman Empire, edited by J.B. Bury. It would be impossible to refer to all the books bearing on the article, but one may select (i.) for the period down to 476, Stuart Jones,The Roman Empire(1908), an excellent brief sketch; H. Schiller,Geschichte der römischen Kaiserzeit(1883-1888); O. Seeck,Geschichte des Untergangs der antiken Welt(Band I., Berlin, 1897-1898, Band II., 1901) (a remarkable and stimulating book); and the two excellent articles on “Imperium” and “Princeps” in Smith’sDictionary of Greek and Roman Antiquities(1890); (ii.) for the period from 476 down to 888, T. Hodgkin,Italy and her Invaders(1880-1900); F. Gregorovius,Geschichte der Stadt Rom im Mittelalter(1886-1894; Eng. trans., London, 1894-1900); E. Lavisse,Histoire de France, II. i. (1901); J.B. Bury,History of the Later Roman Empire(1889); (iii.) for the Holy Roman Empire of the German nation, W. von Giesebrecht,Geschichte der deutschen Kaiserzeit(1881-1890); J. Zeller,Histoire d’Allemagne(1872-1891); R.L. Poole,Illustrations of Medieval Thought(1884); S. Riezler,Die literarischen Widersacher der PäpstezurZeit Ludwigs des Baiers(1874); J. Jannsen,Geschichte des deutschen Volkes seit dem Ausgang des Mittelalters(1885-1894); L. von Ranke,Deutsche Geschichte im Zeitalter der Reformation(1839-1847), andZur deutschen Geschichte.Vom Religionsfrieden bis zum dreissigjährigen Krieg(1869); and T. Carlyle,Frederick the Great(1872-1873). On the fall of the Roman Empire and the transition to the modern German Empire see Sir J.R. Seeley,Life and Times of Stein(1878); H. von Treitschke,Deutsche Geschichte(1879-1894); and H. von Sybel,Die Begründung des deutschen Reichs(1890-1894, Eng. trans.,The Founding of the Germ. Emp., New York, 1890-1891). For institutional history, see R. Schröder,Lehrbuch der deutschen Rechtsgeschichte(1894). On the influence of the Holy Roman Empire upon the history of Germany, see J. Ficker,Das deutsche Kaiserreich(1861), andDeutsches Königtum und Kaisertum(1862); and H. von Sybel,Die deutsche Nation und das Kaiserreich(1861).
(E. Br.)
1Bryce points out, with much subtlety and truth, that the rise of a second Rome in the East not only helped to perpetuate the Empire by providing a new centre which would take the place of Rome when Rome fell, but also tended to make it more universal; “for, having lost its local centre, it subsisted no longer by historic right only, but, so to speak, naturally, as a part of an order of things which a change in external conditions seemed incapable of disturbing” (Holy Roman Empire, p. 8 of the edition of 1904).2Thede factoimportance of the event of 476 can only be seen in the light of later events, and it was not therefore noticed by contemporaries. Marcellinus is the only contemporary who remarks on its importance, cf.Marcellini Chronicon(Mon. Germ. Hist., Chronica minora.ii. 91),Hesperium Romanae gentis imperium ... cum hoc Augustulo periit ... Gothorum dehinc regibus Romam tenentibus.3A passage in Malchus, a Byzantine historian (quoted by Bryce,Holy Roman Empire, p. 25, noteu, in the edition of 1904), expresses this truth exactly. The envoys sent to Zeno by Odoacer urgeὡς ἰδίας μὲν αὐτοῖς βασιλείας οὐ δέοι κοινὸς δὲ ἀποχρήσει μόνος ὤν αὐτοκράτωρ ἐπ᾽ ἀμφοτέροις τοῖς πέρασι. The envoys then suggest the name of Odoacer, as one able to manage their affairs, and ask Zeno to give him,as an officer of the Empire, the title of Patricius and the administration of Italy.4According to the view here followed, the Church was the ark in which the conception of Empire was saved during the dark ages between 600 and 800. Some influence should perhaps also be assigned to Roman law, which continued to be administered during these centuries, especially in the towns, and maintained the imperial tradition. But the influence of the Church is the essential fact.5In the 5th century the titlepatriciuscame to attach particularly to the head of the Roman army (magister utriusque militiae) to men like Aetius and Ricimer, who made and unmade emperors (cf. Mommsen,Gesammelte Schriften, iv. 537, 545 sqq.). Later it had been borne by the Greek exarchs of Ravenna. The concession to Pippin of this great title makes him military head of the Western empire, in the sense in which the title was used in the 5th century; it makes him representative of the Empire for Italy, in the sense in which it had been used of the exarchs.6See the famous bullVenerabilem(Corp. Jur. Canon.Decr. Greg. i. 6, c. 34).7Even on this view, an imperial coronation at the hands of the pope was necessary to complete the title; but this was regarded by the Germans (though not by the pope) as a form which necessarily followed.8It is a curious fact that imperial titles (imperatorandbasileus) are used in the Anglo-Saxon diplomata of the 10th century. Edred, for instance (946-955) is “imperator,” “cyning and casere totius Britanniae,” “basileus Anglorum hujusque insulae barbarorum”: Edgar is “totius Albionis imperator Augustus” (cf. Stubbs,Const. Hist.i. c. vii. § 71). These titles partly show the turgidity of English Latinity in the 10th century, partly indicate the quasi-imperial position held by the Wessex kings after the reconquest of the Dane-law. But there seems to be no real ground for Freeman’s view (Norman Conquest, i. 548 sqq.), that England was regarded as a third Empire, side by side with the other Empires of West and East Europe. That the titles were assumed in order to repudiate possible claims of the Western Empire to the overlordship of England is disproved by the fact that they are assumed at a time when there is no Western emperor. The assumption of an imperial style by Henry VIII., which is mentioned below, is explained by the Reformation, and does not mean any recurrence to a forgotten Anglo-Saxon style.9It is in virtue of this aspect that the Empire is holy. The termsacrum imperiumseems to have been first used about the time of Frederick I., when the emperors were anxious to magnify the sanctity of their office in answer to papal opposition. The emperor himself (see underEmperor) was always regarded, and at his coronation treated, as apersona ecclesiastica.10The emperor claimed suzerainty over the greater part of Europe at various dates. Hungary and Poland, France and Spain, the Scandinavian peninsula, the British Isles, were all claimed for the Empire at different times (see Bryce,Holy Roman Empire, c. xii.). The “effective” empire, if indeed it may be called effective, embraced only Germany, Burgundy and theregnum Italiae(the old Lombard kingdom in the valley of the Po).11Cf. the Act 25 Henry VIII. c. 22, § 1: “the lawful kings and emperors of this realm.”12The Papacy, consistent to the last, formally protested at the Congress of Vienna in 1815 against the failure of the Powers to restore the Holy Roman Empire, the “centre of political unity” (Ed.).13The Turks, occupying Constantinople, have also claimed to be the heirs of the old emperors of Constantinople; and their sultans have styled themselvesKeisar-i-Rûm.14This does not, of course, apply to Hungary, which since 1867 has not formed part of the Austrian empire and is ruled by the head of the house of Habsburg not as emperor, but as king of Hungary.
1Bryce points out, with much subtlety and truth, that the rise of a second Rome in the East not only helped to perpetuate the Empire by providing a new centre which would take the place of Rome when Rome fell, but also tended to make it more universal; “for, having lost its local centre, it subsisted no longer by historic right only, but, so to speak, naturally, as a part of an order of things which a change in external conditions seemed incapable of disturbing” (Holy Roman Empire, p. 8 of the edition of 1904).
2Thede factoimportance of the event of 476 can only be seen in the light of later events, and it was not therefore noticed by contemporaries. Marcellinus is the only contemporary who remarks on its importance, cf.Marcellini Chronicon(Mon. Germ. Hist., Chronica minora.ii. 91),Hesperium Romanae gentis imperium ... cum hoc Augustulo periit ... Gothorum dehinc regibus Romam tenentibus.
3A passage in Malchus, a Byzantine historian (quoted by Bryce,Holy Roman Empire, p. 25, noteu, in the edition of 1904), expresses this truth exactly. The envoys sent to Zeno by Odoacer urgeὡς ἰδίας μὲν αὐτοῖς βασιλείας οὐ δέοι κοινὸς δὲ ἀποχρήσει μόνος ὤν αὐτοκράτωρ ἐπ᾽ ἀμφοτέροις τοῖς πέρασι. The envoys then suggest the name of Odoacer, as one able to manage their affairs, and ask Zeno to give him,as an officer of the Empire, the title of Patricius and the administration of Italy.
4According to the view here followed, the Church was the ark in which the conception of Empire was saved during the dark ages between 600 and 800. Some influence should perhaps also be assigned to Roman law, which continued to be administered during these centuries, especially in the towns, and maintained the imperial tradition. But the influence of the Church is the essential fact.
5In the 5th century the titlepatriciuscame to attach particularly to the head of the Roman army (magister utriusque militiae) to men like Aetius and Ricimer, who made and unmade emperors (cf. Mommsen,Gesammelte Schriften, iv. 537, 545 sqq.). Later it had been borne by the Greek exarchs of Ravenna. The concession to Pippin of this great title makes him military head of the Western empire, in the sense in which the title was used in the 5th century; it makes him representative of the Empire for Italy, in the sense in which it had been used of the exarchs.
6See the famous bullVenerabilem(Corp. Jur. Canon.Decr. Greg. i. 6, c. 34).
7Even on this view, an imperial coronation at the hands of the pope was necessary to complete the title; but this was regarded by the Germans (though not by the pope) as a form which necessarily followed.
8It is a curious fact that imperial titles (imperatorandbasileus) are used in the Anglo-Saxon diplomata of the 10th century. Edred, for instance (946-955) is “imperator,” “cyning and casere totius Britanniae,” “basileus Anglorum hujusque insulae barbarorum”: Edgar is “totius Albionis imperator Augustus” (cf. Stubbs,Const. Hist.i. c. vii. § 71). These titles partly show the turgidity of English Latinity in the 10th century, partly indicate the quasi-imperial position held by the Wessex kings after the reconquest of the Dane-law. But there seems to be no real ground for Freeman’s view (Norman Conquest, i. 548 sqq.), that England was regarded as a third Empire, side by side with the other Empires of West and East Europe. That the titles were assumed in order to repudiate possible claims of the Western Empire to the overlordship of England is disproved by the fact that they are assumed at a time when there is no Western emperor. The assumption of an imperial style by Henry VIII., which is mentioned below, is explained by the Reformation, and does not mean any recurrence to a forgotten Anglo-Saxon style.
9It is in virtue of this aspect that the Empire is holy. The termsacrum imperiumseems to have been first used about the time of Frederick I., when the emperors were anxious to magnify the sanctity of their office in answer to papal opposition. The emperor himself (see underEmperor) was always regarded, and at his coronation treated, as apersona ecclesiastica.
10The emperor claimed suzerainty over the greater part of Europe at various dates. Hungary and Poland, France and Spain, the Scandinavian peninsula, the British Isles, were all claimed for the Empire at different times (see Bryce,Holy Roman Empire, c. xii.). The “effective” empire, if indeed it may be called effective, embraced only Germany, Burgundy and theregnum Italiae(the old Lombard kingdom in the valley of the Po).
11Cf. the Act 25 Henry VIII. c. 22, § 1: “the lawful kings and emperors of this realm.”
12The Papacy, consistent to the last, formally protested at the Congress of Vienna in 1815 against the failure of the Powers to restore the Holy Roman Empire, the “centre of political unity” (Ed.).
13The Turks, occupying Constantinople, have also claimed to be the heirs of the old emperors of Constantinople; and their sultans have styled themselvesKeisar-i-Rûm.
14This does not, of course, apply to Hungary, which since 1867 has not formed part of the Austrian empire and is ruled by the head of the house of Habsburg not as emperor, but as king of Hungary.
EMPIRICISM(from Gr.ἔμπειρος, skilled in, fromπεἶρα, experiment), in philosophy, the theory that all knowledge is derived from sense-given data. It is opposed to all forms of intuitionalism, and holds that the mind is originally an absolute blank (tabula rasa), on which, as it were, sense-given impressions are mechanically recorded, without any action on the part of the mind. The process by which the mind is thus stored consists of an infinity of individual impressions. The frequent or invariable recurrence of similar series of events gives birth in the mind to what are wrongly called “laws”; in fact, these “laws” are merely statements of experience gathered together by association, and have no other kind of validity. In other words from the empirical standpoint the statement of such a “law” does not contain the word “must”; it merely asserts that such and such series have been invariably observed. In this theory there can strictly be no “causation”; one thing is observed to succeed another, but observations cannot assert that it is “caused” by that thing; it ispost hoc, but notpropter hoc. The idea ofnecessaryconnexion is a purely mental idea, an a priori conception, in which observation of empirical data takes no part; empiricism in ethics likewise does away with the idea of the absolute authority of the moral law as conceived by the intuitionalists. The moral law is merely a collection of rules of conduct based on an infinite number of special cases in which the convenience of society or its rulers has subordinated the inclination of individuals. The fundamental objection to empiricism is that it fails to give an accurate explanation of experience; individual impressions as such are momentary, and their connexion into a body of coherent knowledge presupposes mental action distinct from mere receptivity. Empiricism was characteristic of all early speculation in Greece. During the middle ages the empiric spirit was in abeyance, but it revived from the time of Francis Bacon and was systematized especially in the English philosophers, Locke, Hume, the two Mills, Bentham and the associationist school generally.
SeeAssociation of Ideas;Metaphysics;Psychology;Logic; besides the biographies of the empirical philosophers.
SeeAssociation of Ideas;Metaphysics;Psychology;Logic; besides the biographies of the empirical philosophers.
In medicine, the term is applied to a school of physicians who, in the time of Celsus and Galen, advocated accurate observation of the phenomena of health and disease in the belief that only by the collection of a vast mass of instances would a true science of medicine be attained. This point of view was carried to extremes by those who discarded all real study, and based their treatment on rules of thumb. Hence the modern sense of empirical as applied to the guess work of an untrained quack or charlatan.
EMPLOYERS’ LIABILITY,andWORKMEN’S COMPENSATION.1The law of England as to the liability of employers in respect of personal injuries to their servants is regulated partly by the common law and partly by statute; but by the Employers’ Liability Act 1880, such exceptions have been grafted upon the common law, and by the Workmen’s Compensation Act 1906, principles so alien to the common law have been applied to most employments that it is impossible now to present any view of this branch of the law as a logical whole. All that can be done is to state the nature of the liability at common law.the extension of it effected by the Employers’ Liability Act 1880, and the new liabilities introduced by later acts.
At common law the liability of a master is of a very limited character. There is, of course, nothing to prevent a master and servant from providing by special contract in any way they please for their mutual rights in cases ofCommon law.personal injury to the servant. In such cases the liability will depend upon the terms of the special contract. But apart from any special agreement, it may be broadly stated that a master is liable to his servants only for injuries caused by his own negligence. Injuries to a servant may arise from accident, from the nature of the service, or from negligence; and this negligence may be of the master, of another servant of the master, or of a stranger. If the injury is purely accidental the loss lies where it falls. If it arises from the nature of the service, the servant must bear it himself; he has undertaken a service to which certain risks are necessarily incident; if he is injured thereby, it is the fortune of war, and no one can be made responsible. If the injury is caused by the negligence of a stranger, the servant has his ordinary remedy against the wrong-doer or any one who is responsible as a principal for the conduct of the wrong-doer. If it is caused by the negligence of a fellow-servant, he likewise has his ordinary remedy against the actual wrong-doer; but, by virtue of what is known as the doctrine of common employment, he cannot at common law make the master liable as a principal. The only case (independently of modern legislation:see below) in which he can recover damages from the master is where the injury has been caused by negligence of the master himself. A master is negligent if he fails to exercise that skill and care which, in the circumstances of the particular employment, are used by employers of ordinary skill and carefulness. If he himself takes part in the work, he must act with such skill and care as may reasonably be demanded of one who takes upon himself to do work of that kind. If he entrusts the work to other servants, he must be careful in their selection, and must not negligently employ persons who are incompetent. He must take proper care so to arrange the system of work that his servants are not exposed to unnecessary danger. If tools or machinery are used, he must take proper care to provide such as are fit and proper for the work, and must either himself see that they are maintained in a fit condition or employ competent servants to do so for him. If he is bound by statute to take precautions for the safety of his servants, he must himself see that that obligation is discharged. For breach of any of these duties a master is liable to his servant who is injured thereby, but his liability extends no further.
That his obligations to a servant are so much less than to a stranger is chiefly due to the doctrine of common employment. As a rule a master is responsible for the negligence of his servant acting in the course of his employment;Common employment.but, from about the middle of the 19th century, it became firmly rooted in the law that this principle did not apply where the person injured was himself a servant of the master and engaged in a common employment with the servant guilty of the negligence. In effect this rule protects a master as against his servant from the consequences of negligence on the part of any other of his servants; to this there is no qualification except that, for the rule to apply, both the injured and the negligent servant must be acting in pursuance of a common employment. They must both be working for a common object though not necessarily upon the same work.
It is not easy to define precisely what constitutes a common employment in this sense, and there is peculiarly little judicial authority as to the limit at which work for the same employer ceases to be work in a common employment. It does not depend on difference in grade; all engaged in one business, from the manager to the apprentice, are within the rule. It does not depend on difference in work, if the work each is doing is part of one larger operation; all the servants of a railway company, whether employed on the trains, or at the stations, or on the line, are in a common employment. It does not necessarily depend on difference of locality; a servant who packs goods at the factory and a servant who unpacks them in the shop may well be in a common employment. On the other hand, it is not enough that the two servants are working for the same employer, if there is nothing in common between them except that they are making money for the same man; apart from special circumstances, the crews of two ships owned by the same company are probably not in common employment while navigating their respective ships. The test in each case must be derived from the view, invented by the courts, upon which the doctrine was based, namely, that the servant by entering upon the service consented to run all the risks incidental to it, including the risk of negligence on the part of fellow-servants; if the relation between the two servants is such that the safety of the one may, in the ordinary course of things, be affected by the negligence of the other, that negligence must be taken to be one of the risks of the employment assented to by the servant, and both are engaged in a common employment. In ninety-nine cases out of a hundred it will be found that the doctrine is applicable, and the master protected from liability. It is thus seen that, in general, no action will lie against a master at the suit of his servant, unless the servant can prove personal negligence on the part of the master causing injury to the servant. And in such action the master may avail himself of those defences which he has against a stranger. He may rely upon contributory negligence, and show that the servant was himself negligent, and that, notwithstanding the negligence of the master, the injury was proximately caused by the negligence of the servant. Or (except in cases where the injury results from a breach of a statutory duty) he may prove such facts as establish the defence expressed in the maxim,volenti non fit injuria; that is, he may prove that the injured servant knew and appreciated the particular risk he was running, and incurred it voluntarily with full understanding of its nature. Mere knowledge on the part of the servant, or even his continuing to work with knowledge, does not necessarily establish this defence; it must be knowledge of such a kind and in such circumstances that it can be inferred that the servant contracted to take the risk upon himself. The action at common law is subject to the general rule that personal actions die with the person; except so far as the remedy for money loss caused by death by negligence has been preserved in favour of a husband or wife and certain near relatives, under Lord Campbell’s Act (Fatal Accidents Act 1846).
It is not easy to define precisely what constitutes a common employment in this sense, and there is peculiarly little judicial authority as to the limit at which work for the same employer ceases to be work in a common employment. It does not depend on difference in grade; all engaged in one business, from the manager to the apprentice, are within the rule. It does not depend on difference in work, if the work each is doing is part of one larger operation; all the servants of a railway company, whether employed on the trains, or at the stations, or on the line, are in a common employment. It does not necessarily depend on difference of locality; a servant who packs goods at the factory and a servant who unpacks them in the shop may well be in a common employment. On the other hand, it is not enough that the two servants are working for the same employer, if there is nothing in common between them except that they are making money for the same man; apart from special circumstances, the crews of two ships owned by the same company are probably not in common employment while navigating their respective ships. The test in each case must be derived from the view, invented by the courts, upon which the doctrine was based, namely, that the servant by entering upon the service consented to run all the risks incidental to it, including the risk of negligence on the part of fellow-servants; if the relation between the two servants is such that the safety of the one may, in the ordinary course of things, be affected by the negligence of the other, that negligence must be taken to be one of the risks of the employment assented to by the servant, and both are engaged in a common employment. In ninety-nine cases out of a hundred it will be found that the doctrine is applicable, and the master protected from liability. It is thus seen that, in general, no action will lie against a master at the suit of his servant, unless the servant can prove personal negligence on the part of the master causing injury to the servant. And in such action the master may avail himself of those defences which he has against a stranger. He may rely upon contributory negligence, and show that the servant was himself negligent, and that, notwithstanding the negligence of the master, the injury was proximately caused by the negligence of the servant. Or (except in cases where the injury results from a breach of a statutory duty) he may prove such facts as establish the defence expressed in the maxim,volenti non fit injuria; that is, he may prove that the injured servant knew and appreciated the particular risk he was running, and incurred it voluntarily with full understanding of its nature. Mere knowledge on the part of the servant, or even his continuing to work with knowledge, does not necessarily establish this defence; it must be knowledge of such a kind and in such circumstances that it can be inferred that the servant contracted to take the risk upon himself. The action at common law is subject to the general rule that personal actions die with the person; except so far as the remedy for money loss caused by death by negligence has been preserved in favour of a husband or wife and certain near relatives, under Lord Campbell’s Act (Fatal Accidents Act 1846).
Such was the law up to 1880. So long as industry was conducted on a small scale, and the master worked with his men, or was himself the manager, its hardship was perhaps little felt; his personal negligence could in many casesThe act of 1880.be established. But with the development of the factory system, and the ever-growing expansion of the scale on which all industries were conducted, it became increasingly difficult to bring home individual responsibility to the employer. As industry passed largely into the control of corporations, difficulty became almost impossibility. The employer was not liable to a servant for the negligence of a fellow-servant, and therefore, in most cases of injury, was not liable at all. It is not surprising that the condition of things thus brought about, partly by the growth of modern industry and partly by the decisions of the courts, caused grave dissatisfaction. The justice of the doctrine of common employment was vigorously called in question. In the result the Employers’ Liability Act 1880 was passed. The effect of this act is to destroy the defence of common employment in certain specified cases. It does not abolish the doctrine altogether, nor, on the other hand, does it impose upon the master any new standard of duty which does not exist as regards strangers. All that it does is to place the servant, in certain cases, in the position of a stranger, making the master liable for the negligence of his servants notwithstanding the fact that they are in common employment with the servant injured. It is still necessary under the act, as at common law, to prove negligence, and the master may still rely upon the defences of contributory negligence andvolenti non fit injuria. But under the act he cannot, as against the workmen who come within it and in the cases to which it applies, set up the defence that the negligence complained of was the negligence of a servant in a common employment. The act does not apply to all servants. It does not apply to domestic or menial servants, or to seamen, or to any except railway servants and “any person who, being a labourer, servant in husbandry, journeyman, artificer, handicraftsman, miner, or otherwise engaged inmanuallabour ... has entered into or works under a contract with an employer, whether the contract be oral or in writing, and be a contract of service or a contract personally to execute any work or labour.” Whether a servant, not being one of those specially named, is within the act depends on whether manual labour is the real and substantial employment, or whether it is merelyincidental thereto; thus a carman who handles the goods he carries may be within the act, but a tramcar driver or an omnibus conductor is not. The act does not make the master liable for the negligence of all his servants, but, speaking generally, only for the negligent discharge of their duties by such as are entrusted with the supervision of machinery and plant, or with superintendence, or the power of giving orders, with the addition, in the case of a railway, of the negligence of those who are given the charge or control of signals, points, locomotive engines or trains. The cases dealt with by the act are five in number; in the first and fourth the words are wide enough to include negligence of the employer himself, for which, as has been seen, he is liable at common law. In such instances the workman has an alternative remedy either at common law or under the act, but in all other respects the rights given by the act are new, being limitations upon the defence of common employment, and can be enforced only under the act.