The peace conferences at Münster and Osnabrück are historical events which in German cultural memory occupy a relatively modest position on the imaginary scale of historic significance. To this day the Peace of Westphalia is remembered more as a symbol of power-political weakness and disintegration than as the hope-inspiring end of a long and destructive war [1], and even less so as a fiercely defended fundamental body of law that profoundly influenced German statehood for far longer than any other constitutional law has ever since. The negative image of the Peace of Westphalia has its origins in the perceptions of the sovereign national Machtstaat (powerful state) - and thus the nineteenth century. The time has come to examine these sentiments in the light of more open models of integration. The aim of this article is thus to discuss the contents of a treaty whose provisions concerned almost exclusively Germany, despite the fact that diplomats from throughout Europe were present when it was concluded.

Peace had been longed for fervently and was celebrated, spontaneously, every year, at the order of the principalities' rulers. [2] The Treaty settled matters like amnesty and compensation, constitutional structures and the relation between the confessions, and therefore set down a permanent body of law. [3] It was confirmed by the Emperor at the conclusion of the next Imperial Diet and incorporated into the Wahlkapitulationen, which were treaties under international law governing European States' jurisdiction over their subjects living in non-European territories. [4] The Peace was accepted as the constitution (perpetua lex et pragmatic imperii sanctio [5]) wherever the Emperor and his privileges were recognized as a symbol of the unity of the Empire, wherever the imperial courts had jurisdiction, and wherever the Estates of the Empire demonstrated their allegiance by attending the Imperial Diet [Reichstag] and councils of the Circles [Kreisrat] and paying taxes to the Empire. This Empire, characterized by closer political cooperation, was markedly smaller than the feudal system [Lehnsverband] of the Middle Ages. Its geographical outline resembled that of modern-day Germany. Upper Italy, the Helvetian Confederation, the Netherlands and large areas of the Circle of Burgundy did not form part of the Empire, while Lower Germany was not fully integrated into its territory until after confessionalisation [Konfessionalisierung]. [6] Bohemia and its neighbouring countries occupied a comparatively marginal position, even though they were closely connected to imperial politics through the Habsburg monarchy. [7]

A distinction should be drawn between the more cohesive "German" Empire, a focused constitutional system whose centre was the Imperial Diet, and the loosely articulated feudal system of the "Empire" in general. To this end, and so as to avoid complicated descriptions and indicate the federal structure of the 'new' Empire, I wish to introduce here the concept "complementary Empire-State". Although to an extent the term describes the same state of affairs as Peter Moraw's Reichstags-Deutschland, it gives greater expression to the "modern" aspects of state formation and concentration. In contrast to the images of expansion and pretentiousness conjured up by the phrase "Holy Roman Empire" or its cousin the "German Empire"(which becomes increasingly common after 1648) the term "Empire-State" avoids such undesirable associations. The adjective "complementary" explains that the State consisted of a hierarchical structure composed of numerous levels of varying influence, each of which complemented the others. The Emperor, the Estates of the Empire, the corporations, Circles and alliances were able to, and indeed did, join hands to achieve specific goals. The term "complementary Empire-State" aims to stress the interdependence of the head and body, as well as the constitutional foundations of the state.

The Peace of Westphalia did not destroy this more tightly articulated Empire but reconfirmed its federal unity. [8] Contemporary commentators, from both Germany and elsewhere, rarely questioned the principle of a statehood which was based on the authority of the constitution instead of the authority of the sovereign. They tried to understand its specificities, among other things by coining the term "Empire state" in analogy to the "princely state". "Empire-State, Constitution of the Empire-State and Status Imperii Romano-Germanici Publicus really denote nothing other than the interrelationship between the head and body, that is between His Majesty the Emperor and the Prince Electors, Princes and Estates [...]". [9] Naturally this system was neither exclusive nor all-embracing, but related only to those matters which could only be settled by the Emperor and Empire together: questions concerning the law, internal peace and defence.

The Peace of Westphalia created a new grounding for this. It defined the relationship between the Emperor and the Estates, addressed questions of amnesty and compensation, and settled the status of the three confessions permitted under imperial law. From 1800 onwards the Peace as fundament of German statehood formed part of a core cultural heritage, despite the fact that only Protestant regions commemorated it on special feast days. Johann Gottfried von Meiern, who between 1734 and 1736 published the proceedings of the peace conference, wrote: "The whole of the German Empire and fatherland now has good reason to honour this Peace, which has bestowed lasting order, peace and security on religion and the State, as a merciful gift of God, and to regard it as the most holy of laws and fundament of its outward happiness. For the same reason it is the duty and responsibility of any patriotic German that his deepest wish should be for no sign or letter of this glorious law ever to vanish [...]. [10] Johann Jacob Schmauss considered the Peace "the bond that upholds peace in the German Empire and friendship between Catholics and Protestants." [11]

The Peace of Westphalia as imperial constitution was the definitive principle during discussions about the imperial Wahlkapitulationen or in the negotiations of the curiae of the Imperial Diet in Regensburg. An anonymous German patriot, however, who in 1789 identified "German freedom" with "the whole of the German nation", including "all its parts, members and Estates", was probably too euphoric in saying "since the happy days of the Westphalian Peace, which established this most salutary system of government that is half monarchy and half aristocracy, the bloody feuds among German emperors and princes have ceased; since that time security, peace and quiet have reigned throughout the fatherland, and their most wholesome consequences for the population, industry, culture, the Enlightenment, etc. are evident everywhere.". [12] Friedrich Schiller, speaking about the Peace of 1648, felt that "there has never been a product of human wisdom and passion that has been more interesting or shown greater character [..]". [13] These authors' sentiments were echoed by writers, academics and princes, who considered the German constitutional structure generally felicitous, harmonious and appropriate, worth defending despite its obvious shortcomings. [14] In the seemingly chaotic arrangement of equal, subordinate and superior State and State-like powers they saw a system of mutual checks and balances, an effective protection against tyranny, and a guarantee for peace, the rule of law and freedom under the law. Imperial patriotism equalled constitutional patriotism.

A radical shift in opinion followed the end of the old Empire. The new objective of the 19th century was the creation of a nation state: the Empire, and with it the Peace of Westphalia, became a symbol of decadence [15], of how the (German) State of the high Middle Ages had become, at the dawn of the modern age, a powerless agglomerate of small principalities. Denunciation and deprecation were hoped to prevent any renewed interest in this form of State. It was during this era that Prussia's stated mission, namely the creation of a German national State, was prepared and later legitimized. "From the chaos of the disintegrating parts of the Empire and a mass of incomplete territories rose the young Prussian State. From that time on, it was the centre of political life in Germany." Heinrich von Treitschke was not the only, but certainly the most bombastic, writer to interpret German history from the Prussian point of view. In retrospect the imperial constitution appeared to him "like a cleverly conceived system created so as artificially to suppress the fearsome might of the most war-loving of all peoples." [16] From that time on, the Peace of Westphalia was perceived as a treaty dictated by foreign powers, which had not only cost Germany territorial losses but had also hampered its development into a nation state.

Nineteenth-century historians, fixated on the sovereignty of the nation state, were particularly suspicious of the guarantors of the peace, France and Sweden. The clauses of the Treaty, however, which like much else were formulated less than unambiguously [17], mentioned only that the contracting parties had a duty to protect and assist, under certain conditions, (omnes huius transactionis consortes) anyone whose rights under the Treaty had been violated. Under this formulation all Estates of the Empire (as desired by Sweden), or even all the parties to the Treaty (as requested by France) would have been considered guarantors of the Peace. The Emperor, however, had always vehemently opposed this; he was supported by article XVII, paragraph 6 (IPO), which expressly excluded the rights of the courts and the courts of the Estates. [18]

The guarantee clause did not induce foreign powers to intervene in the internal affairs of the Empire. Even though Louis XIV of France tended to emphasize the clause in diplomatic negotiations and used it to exert pressure, he never invoked it. At the Imperial Diet held in Regensburg in 1673, the Prince Elector Friedrich Wilhelm I of Brandenburg resolutely rejected the French interpretation that the Peace of Westphalia prohibited the Estates of the Empire to assist an enemy of the French crown. Referring to the Emperor as "father of the fatherland", he appealed to both the sovereign and the Empire at last to take a firmer stand against the French aggressor. [19] In any event, Louis XIV, had he fallen back on the guarantee clause, would have had to reach agreement not only with Sweden but also the Emperor himself, the oft-forgotten third guarantor of the peace: hardly the best possible preconditions for his campaigns of conquest and policy of reunification. French lawyers found other reasons. For example, France took part in the first Confederation of the Rhine so as to win greater influence over Germany than made possible by the guarantee clause. [20] What effect the clause had on the attitude and behaviour of the Emperor and Estates should be the subject of closer examination.

The writings of Fritz Dickman show for just how long the ideas of external intervention, pressure and distintegration persisted. Despite painful experiences under the specifically German variant of the national state, he wrote in 1959 that: "for our people the Peace was a national tragedy; for the Holy Roman Empire, until then the expression of German statehood, it was the onset of a deadly disease to which it eventually succumbed." [21] In 1966 he noted: "What the Empire lost in sovereign rights and political power fell to the small individual states; they alone still had a future — the Empire had been condemned to die. The Empire ceased to be a State; all political energy became concentrated in the territories, especially the larger ones, which were the only entities left still worthy of being called "State". [22]

If Dickmann was right and if the Peace did indeed grant "sovereignty" to the princes [23] and "destroyed" the Empire more than "revive" it [24], it would be understandable that the nation did not erect a monument to commemorate it. Not until the jubilees celebrated at the close of the 19th century were Münster and Osnabrück declared historic commemorative sites. The festivities celebrated an abstract peace and not the constitution of the precursor of the modern German State. In 1998, the celebrations' leitmotif is Europe. It is perhaps a way of circumventing Germany's difficult relationship with peace, and of creating a forward-looking and integrated perspective: from a diktat imposed by foreign powers to the basis for peace in Europe. Münster and Osnabrück will, however, remain historic sites of European significance only if the concrete achievements of the Peace, rather than its associated procedures and underlying value systems, are moved to centre-stage. Not the territories to which the Peace applied were European, but the way in which the Treaty was negotiated. The peace negotiations pointed the way to a European confederation based on sovereignty and diplomatic equality. [25] Nonetheless, the German Estates and France did not want the wars of the Spanish king to be included in the negotiations [26]; similarly, the Peace of Münster between Spain and the Dutch Republic may be regarded as the accidental result of certain constellations in the negotiations. [27] The settlements for Upper Italy, Savoy and the Circle of Burgundy [28] were more options on peace than a lasting end to it, as the war between France and Spain continued unchecked.

The Peace of Westphalia concluded the war in the Empire-State, including Bohemia, as well as in the Netherlands and the Helvetic Confederation, which from now on were both recognized as sovereign entities. The Peace gave the Holy Roman Empire a new, if somewhat altered, constitution. Ferdinand III had objected to the fact that the negotiations at Osnabrück mutated into a constitutional debate. He did not wish foreign powers to have a say in the affairs of the Empire, which he would have preferred to discuss at the Deputationstag (a smaller version of the Imperial Diet) in Frankfurt or at a new Imperial Diet. The admission of the Estates, however, settled the matter. In the conditions submitted by France and Sweden on 11 June 1645, the strengthening of the imperial constitution occupied a central place. Their main demands were freedom for the Estates and guarantees that there would be no more domination by the Emperor. The Emperor's political decisions were to be subject to the consent of the Estates. [29] While Ferdinand III continued to put up resistance, the Swedes in January 1646 made it clear that there would be no peace without a binding consensus on the imperial constitution. "Neighbouring states, whose security is founded on the tranquillity and equilibrium of the Holy Roman Empire, have as great a reason as Germany itself to work towards and assist it to agree to the new constitution of the Empire." [30]

The participants at the peace conference were familiar with the writings of one Bogislaw Philipp von Chemnitz, who in 1640, under the pseudonym Hippolithus a Lapide, had made the reasons of state conditional on the preservation of its constitution. It followed that, since the Habsburg dynasty, which had grown to a position of dominance, constantly violated the reasons of state and the imperial constitution, it would have to be banned from the Empire. Only in this way would it be possible to prevent despotism and reach stability based on German freedom. Much like Bodin, Philipp von Chemnitz considered the Empire to be nothing other than an aristocracy. Not the Emperor, who was bound by the fundamental laws of the Empire, stood above positive law, but the Estates gathered at the Imperial Diet. It was they who made the law. The Emperor was merely primus inter pares. [31]

The arguments of von Chemnitz were heavily influenced by the Peace of Prague of 1635. [32] His patriotic faith in the constitution did not serve the interests of foreign powers — an accusation frequently leveled against him — but sprang from the kind of radical views that had already been voiced among the Estates in the run-up to the formation of the Schmalkaldic League [33] and at any time thereafter when the threat of a monarchic system arose. Although the peace conference did not want to send the Habsburg dynasty into exile, it certainly wished to define its sphere of influence. In this sense, von Chemnitz's anonymous publication certainly did not miss its mark. The Treaty created a secure legal basis for the territories and is regarded as the "Magna Charta of German princes". [34] It did not, however, bring about the disintegration of the State or princely absolutism. Both are based on earlier developments. The provisions set out in Article VIII of the Treaty of Osnabrück concerning the relationship between the Emperor and the Estates primarily defined rules and procedures that had become established in the 16th century and, by and large, had proved their worth. Taking into consideration the experiences made during the constitutional crisis of 1600 and the Emperor's predominant position, which became particularly apparent in the Edict of Restitution of 1629 and the Peace of Prague [35], the Empire was given a pragmatic new structure, based on what had proved its worth in the past and what was considered possible in the future.

To ensure that no arguments would ensure over the constitution (in statu politico), all Elector Princes, princes and Estates were attested territorial sovereignty (ius territoriale or ius territorii et superioritatis [36]) and the right of alliance. The context makes it clear that this was not intended to confer sovereignty and supremacy as discussed by Bodin. In the Treaty the comprehensive ius territoriale [37] is part of a list of privileges the Estates had enjoyed as early as the 16th century, and which were now confirmed: existing rights, prerogatives, freedoms, privileges, dominions and regalian rights. These the Emperor was quick to accept — in contrast to the concept of sovereignty he consistently rejected. [38] The knights of the Empire as well as the free cities were guaranteed similar rights. [39] As the Estates enjoyed only territorial sovereignty, the consequences of the right of alliance were hugely overestimated. [40]

The Peace did not leave the German Estates subjects of international law, able to play their part as sovereign States among the major European powers. This was reserved for Austria and Brandenburg-Prussia. The Treaty merely granted the Estates the right of to form alliances among themselves and with others for their own safety and protection, provided that it did not oppose the Emperor and Empire, the oath of allegiance sworn to both, the Landfrieden (peace legislation) or the Peace of Westphalia. Being friendly disposed towards the Empire remained a constitutional obligation. Even the Imperial Aulic Court held that alliances were imperial conventions, their express authorization in 1648 only a revision of the ban contained in the Peace of Prague. Since the late Middle Ages associations and corporations had helped to compensate for the Empire's deficits and to strengthen internal security. "There can be no doubt that the most significant difference between the highest authority of an independent power and the territorial sovereignty of a German Estate is that the latter is subordinate to an even higher authority, as exercised partly by the Emperor alone and partly by the Emperor and Empire together, while the former recognizes no higher mortal power above it." [41]

The Imperial Diet remained the coordinating forum for imperial politics. The German Estates gathered there had to agree to the enactment of new laws or interpretation of existing ones, recruitment and decisions concerning warfare and peace, the quartering of troops and taxes. That the rights of the German Estates differed from those of the French parliaments (parlamente) had already been made clear to the Emperor's envoys, who insisted on equal treatment, in the course of discussions about who would be admitted to the peace conference. [42] The rights of participation, however, already claimed by the Imperial Diet before 1648, were by no means transferred to the individual Estates [43] — instead they were guaranteed to the corpus of Estates as a whole. An Imperial Diet was to be held within six months to ratify the cession of territories to France [44], address procedural shortcomings and elect a Roman king. The Diet also had to decide on a permanent Wahlkapitulation, reforms of the police and justice systems and the procedures for outlawry, renew the Circles of the Empire and the imperial register, and define the composition of the Deputationstag and the tasks of the directorates in the imperial colleges. [45] This programme was never carried through. In 1651 the electoral prince Johann Georg von Sachsen said that the peace Treaty not only "was close to harsh and severe" with the Emperor's authority, it also "in various ways cut back and noticeably reduced the preeminence" of the Elector. [46]

The next Imperial Diet convened in 1653/54 in Regensburg. It was to be the last with a regular resolution [47], which contains important provisions on "the justice system, without which no Empire can maintain peace and order [...]" [48] and on the debt problem. The existing executive rules were tightened further; the princes were granted a general right to levy taxes to defend their principalities, even against the Estates. No agreement was achieved with regard to all the other points postponed in 1648 (negotia remissa). The next Diet was to become the permanent one.

The Peace of Westphalia as the fundamental law of the Empire had the same status as the other fundamental laws (constitutiones fundamentales imperii). Furthermore, the Treaty specified that it could not be amended unilaterally. [49] It was based on a contractual agreement between the Emperor and the German Estates with the assistance of the foreign crowns, and, like the Golden Bull, contained provisions relating to the King's peace and religious peace, the rules of procedure for the executive, the Chamber Court of the Empire and the Imperial Aulic Council, the most recent Wahlkapitulation, and the constitutional law of the Empire-State. Johann Jacob Moser said of these fundamental laws that "without them the German State would not be what it is today." [50]

That the Estates adopted a long-term perspective during the negotiations at the peace conference becomes clear if we look at the way in which the religious question was handled. To all intents and purposes they bargained themselves out of their right to define a binding religion in their territories. Although Article V confirmed the Peace of Augsburg, the additional and supplementary provisions annulled the rulers' ius reformandi in favour of the Normaljahr (normative year) settlement of 1 January 1624. According to Article VII a ruler who had converted to another confession could no longer force his subjects to follow suit. Special regulations ensured that the Elector Palatine in addition to the newly created eighth vote also received permission to restore the Rhine Palatine to the status quo prevailing in 1618, that is to reintroduce the reformed faith [51], and that in the Habsburg territories the principle cuius regio, eius religio was maintained — Protestants had to be tolerated only in Silesia and Lower Austria. [52]

At the level of the Empire, the Peace provided that the Lutheran, Reformed and Catholic confessions in principle enjoyed equal status. This was not without consequences for the territories. Paragraphs 31 to 37 of Article V forced all Estates gradually to tolerate the other two confessions, provided they had already existed in 1624 [53]: if this was the case, they had to permit private religious worship (exercitium privatum) in a place of worship and with a private preacher in attendance. Even in places where no other confession had been tolerated in 1624, all subjects were assured complete freedom of conscience and the right to attend the religious service of their choice. Rulers were, however, still entitled to force their subjects to leave their territories at three year's notice.

In Germany toleration and freedom of conscience were the early manifestations of the concept of tolerance. Here, however, they were not only part of a non-binding value system, but also a right enforceable in a court of law. It therefore comes as no surprise that Johann Jacob Moser should count religious freedom among the basic rights of the individual in Germany. [54] In contrast to the Peace of Augsburg the new regulations soon lowered the potential for conflict and gave subjects and ecclesiastical principalities alike a sense of certainty about their legal position. They took away the bases of the policy of confessional expansion which around 1600 had caused profound tensions in the Empire's territories.

The most spectacular expression of the new equality of the confessions was that majority decisions were no longer permitted to settle contentious religious issues in the Imperial Diet. Religious disputes were to be resolved by amicable settlement between the two confessions, which were organized in two Corpora with equal rights. [55] At the Chamber Court of the Empire, where confessional representation was almost perfectly balanced, with the Catholic Estates and the Emperor presenting 26 assessors, and the Protestant Estates 24, and even at the Imperial Aulic Council, conflicts were settled in a similar manner. [56] The objective was to avoid extreme positions and integrate the confessional parties into the constitutional structure. Here the wholesome need to compromise, already a hallmark of decision-making in the Empire-State, was taken to the limit. The conference at Osnabrück tried to learn from the experiences made in the period around 1600, and in so doing drew up rules that could easily have led to a complete constitutional deadlock. So as to out-manoeuvre the remaining Catholic majority in the Imperial Diet, the Protestants had only to stress the confessional background of the dispute at hand.

Especially during the Seven Years War Frederick the Great attempted to influence political decisions in his favour. [57] Haug-Moritz uses the phrase "reconfessionalisation of imperial politics" [58], Aretin disagrees. [59] In reality the restrictive interpretations of the Emperor and the Catholic corpus won the day. The settlement procedure described above was used only on very few occasions. Usually the parties settled the issue before the hearing or decided to forego a decision which could have lead to the collapse of the Empire's constitutional structure. Nevertheless, the option of dividing the Imperial Diet into two confessional corpora was part of the reality of the late Empire. Overall, however, the Peace of Westphalia to a large extent secularized and thus defused the consequences of the confessional conflicts. In this regard the conference at Osnabrück introduced new aspects into constitutional law, while for the rest settling the relationship between Emperor and Estates with a view to the customary, the necessary and the practicable.

Minimum consensus among all the parties concerned and the will to work together pragmatically to maintain this comparatively complex constitutional structure remained a prerequisite for the proper functioning of the complementary Empire-State. The Treaty of 1648 made further steps towards the establishment of legal foundations for all aspects of the State. In so doing it secured the status quo and prevented both the annexation of smaller Estates by larger ones as well as despotic government in the territories. Only the constitutional structure of the complementary Empire-State was "sovereign", and not its head or body. The situation is reminiscent of the English principle "King in Parliament", even though the Anglosaxon variant was much easier to put into effect and for the most

part Germany had nothing approaching unified authority of the State.

The Empire-State's legal scholars had difficulty classifying this composite State in which different levels of authority joined to form a whole. Pufendorf's monstro simile [60] was followed by the description of Moser the elder: "Germany is governed the German way". [61] Limnaeus transformed Bodin's theory of the sovereignty of rulers into one of the sovereignty of the State: while the Estates exercised majestas realis, its derivative majestas personalis accrued to the Emperor as head of State. [62] Whereas Chemnitz (Lapide) considered the Empire a pure aristocracy, the Emperor's many different privileges led Reinkingk to qualify it as a monarchy. [63] These two positions formed the opposite poles in a broad spectrum of opinions. Most votes were won by the status mixtus theory: the Empire was governed by a mixture of monarchy and aristocracy. [64] Some authors also believed that it contained traces of oligarchy and democracy, notably in view of the free cities of the Empire. But, as Moser commented "even if one knows all this, one is no wiser than before and still has not adequate sense of what is the constitutional system of the German State." [65]

The complementary Empire-State functioned partly as a restricted monarchy, partly like a confederation of states - "a complicated constitution peculiar to the German Empire [...] an Empire that consists of several separate states which nonetheless are subject to a common, higher authority". [66] The Empire-State was in charge of defence and the legal system, the Circles mainly responsible for the executive powers and the infrastructure, the territories for administration and the disciplining of subjects. As late as the 18th century the princes' tutor in Vienna pointed out that "nevertheless the German Empire has not yet disintegrated into a systema civitatum, but consists of one State only [...], where the authority of the sovereign is exercised partly by the Emperor alone, partly with the agreement of the Prince Electors, but in most instances with the prior knowledge and approval of all the Estates together." [67]

The Estates and the Emperor together constituted the Empire-State in which they jointly enacted comprehensive laws and defined political aspirations. However, they also exercised the authority of the State in their respective territories and principalities. Veit Ludwig von Seckendorff's work "Teutscher Fürsten Stat", a widely read instruction manual on how to run a princely principality after the Peace of Westphalia, lists the following restrictions on a ruler's authority: existing contracts, his subjects' entitlements under natural law, the privileges of the Estates' representatives (Landstände), the obligation to tolerate the three legally sanctioned confessions [68], and the duty to be loyal to "Emperor and Empire". [69] Princes had to proclame imperial laws and take them into consideration when defining their own norms and standards. To "maintain the common peace and welfare of the Empire" it was "indispensable that the harmonious bond between the head and body of the Empire should grow stronger every day rather than weaker." [70] This is also reflected in the copperplate engraving gracing the title page of the book: the imperial eagle soars high above the principality — a measuring staff indicates the permitted distance between the two. [71]

In most cases the Estates, in the knowledge that it was in their own best interest to do so, adopted the imperial laws, before amending them later. Especially with regard to the rules and regulations, even the prince electors and princes were unable to avoid entirely a coordinated approach at the level of the Empire or Circle. The rules governing the police, coinage, trade and commerce and the relations between servants and masters had the desired unifying and disciplining effect only if they did not cease to be valid at the borders of individual territories and principalities. In addition, the Empire's framework regulations had been arrived at by consensus between Emperor and Estates. They had been approved by a majority of the Estates, which had taken good care to ensure that their own territorial sovereignty was not affected more than absolutely necessary. Using the example of the police, Karl Härtner demonstrates how little the widely held belief that there was "on the one hand a powerless and ineffectual Empire, on the other sovereign territories which successfully laid down the police laws" corresponds to historical reality. [72] The complementary relationship between the laws of the territories and the Empire was similar to that existing between the principalities and the Empire-State.

For more than 150 years the Empire's fundamental law of 1648 helped to hold central Europe together as a manifestation of unity in diversity. The law had a defining and integrating effect. Anyone who wished or had to recognize it formed part of the Empire-State that ranged from the Alps to the shores of the North Sea and the Baltic coast. As hereditary rulers and members of the corpora of the Imperial Diet, the Estates occupied a key role in the definition of German statehood in the early modern era. One of the key misunderstandings, however, of the long debate surrounding the Empire's statehood, is that this statehood is considered as nothing more than a "no loss, no gain" situation: "What the Empire lost in sovereign rights and political power, was gained by the individual territories...". [73] On the political playing field, however, one person's gain is not necessarily achieved at the expense of another. Although the Peace of Westphalia certainly did shift the balance of power between Emperor and Empire (and its Estates) in favour of the latter, this changed only little about the traditional distribution of roles. For the most part the various levels of the State complemented each other instead of competing. In the Empire, statehood was never exclusive. [74] Austria and Brandenburg-Preussen acted as European powers outside this structure. Even they, however, did not force apart the Empire since they realized that it was in their best interest not to do so, despite the fact that time and again they violated its constitutional principles.

Whether the Empire, which because of its particular structural make-up was beyond the threat of attack, was a State remains a question of definition. Even though the complementary Empire-State did not necessarily meet the criteria of Machtstaat or nation or tax State, it was nevertheless a functioning system with a clear political

goal and Emperor as sovereign — a State, in other words. The complementary Empire-State even contains discernible traces of the trinity of statehood, as defined under international law (authority, territory and people), which reflects the national State of the 19th century more than the 17th century union of statal and suprastatal systems. There was no single unified authority, but a clearly delimited territory and a population that at least considered itself as German when abroad [75], even if other factors determined their sense of belonging within the Empire-State.

We could dismiss the complementary puzzle which made up statehood in the Empire as particularism and political disunity. Although historical research has long shown this position to be invalid, it lingers in popular perceptions. [76] Today, however, there are many reasons why instead we should perhaps underline the significance of the period's many scientific and cultural centres, the various means it used to control and limit domination, its legally enforceable freedom of conscience, as well as federalism as key determinants of German, and, in future, also European, statehood. [77] This would show that the complementary Empire-State was an historical alternative to the national Machtstaat. The Peace of Westphalia should no longer be seen as a Treaty imposed by foreign powers, which marginalised Germany, but as a successful effort at federal integration. Similarly, we should look at the peace conference as a symbol of the peaceful cooperation and cohabitation of the confessions and of European States on the basis of equality and sovereignty. Once this has been achieved, Münster and Osnabrück will be assured a prominent place among German and European historic sites.

FOOTNOTES