Reading Notes on Family Law in German Ruling Families of the 19th c.
What follows are reading notes on Heinrich Zoepfl: Grundsätze des gemeinen deutschen Staatsrechts (5th ed. Leipzig: C. F. Winter'sche Verlagshandlung. 1863) and specifically, the section entitled "Der Fürst und sein Haus oder das Familien- und Thronerbrecht der souverainen deutschen Familien" (Erster Teil, zwölfter Abschnitt §211-268, pp. 583-759.)
Since the times of the Holy Roman Empire, the term "private law of princes" (Privatfürstenrecht, jus privatum illustrium) referred to the laws governing family relations and inheritances within the families of sovereign and imperial rank (landesherrliche, reichsständische Geschlechter). That law belongs to private law in some respects, dealing as it does with family and inheritance, and having been crafted within the context of general private law; but, since 1815 (when some of these families became fully sovereign) it has also belonged to public law, since its prescriptions have constitutional and political implications. (§211-212).
The private law of princes, aside from rare imperial prescriptions, originates mainly in the families themselves, either in the form of customs, or in the form of written documents such as family pacts, wills, statutes, house laws (Hausgesetze), pragmatic sanctions, etc. When no specific source is available, the general private law of Germany applies, and, subsidiarily, Roman law (considered the common law of the Empire). The local laws are not applicable, unless they have been declared to be by the family itself, for example, Saxon law in the families of Saxony by the settlement of Naumberg of 1554. (§213). Under the Holy Roman Empire, the local Estates had no claim to participate in the drafting of house laws. The publication of the laws was not necessary to make them binding on third parties such as subjects and creditors. Imperial confirmation of the laws was required only when the dispositions interfered with the emperor's reserved powers (such as the Reichshofrat's jurisdiction over guardianship of minors) or involved imperial fiefs, or when they modified rights of the family members that, under imperial jurisprudence, could not be modified unilaterally by the family (protection of the rights of the unborn, renunciation of a daughter to her legal share in her parents' inheritance, ebenbürtigkeit requirements). For example, there are no known cases of a change in the type of primogeniture in any immediate family introduced without imperial sanction. (§214).
With the formation of the German Confederation in 1815 and the accession to full sovereignty of a number of princely families, the autonomy enjoyed by these families in forming their house rules was not explicitly addressed. But the following principles can be derived. The restrictions on that autonomy which came from the families' status vis-à-vis the emperor were removed. The introduction of constitutions did not limit the families' ability to determine their laws without the involvement of local representative bodies, except where the constitutions calls for their participation. Families remain in principle unable to modify succession rights without the consent of all involved; the assent of representative bodies does not give sovereigns more powers than they had as absolute monarchs under the private law of princes (the Hanover house-laws of 1836 make that point explicit). It is true that the disappearance of imperial courts makes it difficult for agnates whose rights have been removed without their consent to press their claims. Finally, there is a doubt as to whether local law (e.g., the Napoleonic code) can be taken as one source of the private law of princes; in some instances, specific statements have been made to resolve that question (Baden in 1823). (§215).
House laws of the 19th century:
Powers of the sovereign over his family (§216)
Under the Holy Roman Empire, the members of a ruling family were subject to the emperor's authority. The ruling member was the head of the family but, unless empowered by the house laws, he had only powers of moral suasion over the members of his family. His powers went no further than those given by general private law to the father over his children and the husband over his wife.
Since 1815, the ruler's powers as father and husband have remained the same; but, either explicitly through house laws or as inherent in the concept of sovereignty, he is also given Familiengewalt or rights over all members of the house, including wives and widows, in familial matters. There is, however, no uniformity of view on the extent of those powers. In the absence of explicit dispositions, one can say that the sovereign can make such prescriptions concerning them as he is empowered to make for his subjects, by decree or by law. He can take action to preserve the honor, order and welfare of the family, particularly in supervising the family members' education, environment, residence, travel or settlement abroad, entry into foreign service; exercising jurisdiction over them and determine their standing in civil and criminal courts; settling matters of guardianship; bestowing title and rank (all family members being in law entitled to the family name and arms, but, contrary to the Holy Roman Empire where they could press claims in the imperial courts, there is under the German Confederation no corresponding court).
Most of the house laws and constitutions have introduced a requirement that the formal consent of the head of the house is a necessary condition for marriages of members of the house. Such a restriction on their personal freedom did not exist in the general law of the Holy Roman Empire, and cannot be assumed to exist unless explicitly introduced in the house laws with the consent of all the dynasts. In all the more recent house laws, the consequence of a marriage without consent is the loss of succession rights for the issue, and the deprivation of rank, title and arms of the spouse and issue; other legal consequences vary from case to case. A few house laws (Bavaria, Würtemberg, Saxony, Saxe-Coburg-Gotha) declare the marriage without consent to be void in law. Some house laws (Hanover, Würtemberg, S-C-G) guarantee that consent will not be refused without good reason.
Where parental consent is also required in common law, the consent of the head of house, if secured, overrides the lack of parental consent. Where no consent of head of house is required, the lack of parental consent has variable consequences: in Catholic houses, it constitutes only an impedimentum impediens, an obstacle that does not void the marriage; the question is not resolved in Protestant houses. (§217).
Marriage by proxy is considered valid in both Catholic and Protestant houses; dispensations can be given by the sovereign for himself or family members in Protestant houses. Marriage contracts are customary for members of princely houses, although no rule of law requires it. (§218)
Regarding secret marriages, German dynasts are each bound by the rules of their respective churches. The Catholics are bound by the canons of the council of Trent requiring that mutual consent be expressed before a competent parish priest and two witnesses. Protestants have not received those canons, and can be presumed to fall back on the principles of Roman law, which were in force in canon law until Trent (at least where local church ordinances have not modified the rules), although the presence of a priest has been required in every local church. The only question can be whether a marriage that has not followed the prescribed religious procedures can still be legally valid for dynastic purposes. For Catholics, the only case is where canon law itself allows the marriage to be valid (marriage occurring in a place where the canons of Trent have not been published, or where no priest can be found). For Protestants, under the HRE it was a commonly (although not unanimously) held view that princes had the ability to validate marriages that had not followed the prescribed forms. In the modern age, dynasts are considered to be subject to the religious ordinances like any other subject: thus, the sovereign can validate his dynasts' secret marriages to the extent that he can do so for other subjects as well. (§219).
Misalliances (Mißheiraten: §§220-226)
Whether a dynast in a sovereign German family (or immediate family in the HRE) must be born of an equal marriage, is an old and unsettled question. It is generally agreed that there no general positive norm to that effect existed before 1742, and that the dispositions of Charles VII's Wahlkapitulation of 1742 did not exhaust the matter. Some have claimed that it existed as an ancient German custom and was obscured by the romanist influence of German law in the 16th and 17th c., a view that Zoepfl disputes. (§220).
An unequal (unstandesmässig) marriage is one where the spouses are not of equal birth. A misalliance (Mißheirat, disparagium) is an unequal marriage in which, by law, the unequal spouse and children are deprived of some rights, in particular to the rank of the higher-ranking spouse and (for the children) to inherit succession rights, patrimony, fiefs, entailed estates, etc. (§221).
In the law of Germanic tribes, merovingian law or carolingian law, one can find no evidence for the concept of misalliance. The only legal categories are free and unfree (cf. Charlemagne's capitulary of 803, §1: "non est nisi liber et servus"). Marriages between free and unfree had varying consequences: under some laws they were void; under others the free spouse became unfree; in others the free spouse remained free but the children were born unfree ("das Kind folgt der ärgeren Hand"). Likewise, canon law sees no difference among marriages between different categories of free spouses; children born of a free and unfree parent assume the status of the lower parent (Decretum, 32.2.15: "filii ex libero et ancilla servilis conditionis sunt; semper enim, qui nascitur, deteriorem statum sumit"). Its main innovation is to recognize marriages between unfree, and to forbid the owner from separating them.
In the 12th century, the view that children were free even if only one parent was developed, and remained in a number of local practices (a form of reverse misalliance, where the son of a serf and a free woman could relinquish his servitude). Another view gradually appeared, that had the son follow the father's status and the daughter follow the mother's. In the end of the 12th century, the old view reasserted itself: "das Kind folgt das ärgeren Hand".
The 13th c. Sachsenspiegel explicitly states that the child of a member of the knightly (ritterlehnfähig) class or noble class inherited his father's rank, and could be better born than his mother. It also states that the children of a better-born woman do not inherit their mother's rank. On the other hand, the Spiegel deutscher Leute and the Schwabenspiegel, both slightly later in the 13th c., first express a concept of misalliance: the children of a man from the nobility (Herrenstand) and a woman of lower rank (ritterlich, vassallistich, schöffenbarfrei) loses the rank of his father. Yet diplomas of the Emperor Rudolf I (1278 on the marriage of margrave Heirnich von Meissen with Elisabeth von Maltitz, and 1273 and 1287 on the marriage of the nobleman Reinhard von Hanau and Adelheit von Münzenberg) make clear the the emperor required nothing more than free birth of the woman for the children of a Reichsfürst to be able to succeed; and for a woman of servile origin, he could always issue letters of emancipation (Freilassungsbriefe). The glosses to the Sachsenspiegel in the 14th c. reaffirm the doctrine that, as long as the mother is free, the children inherit their father's rank even if it is higher. (§222).
In the 15th, 16th and 17th c. the vast majority of jurists considered as fully valid marriages between princes and women of the Ritterstand or Bürgerstand (knightly or burgher class). The only question of dispute is whether the spouse is entitled to the rank of her husband without imperial intervention. This is confirmed by the fact that Ferdinand I, displeased by his son Ferdinand's marriage to Philippina Welser, had to invoke the full imperial powers (plenitudo potestatis) to deprive the issue of succession rights.
It is true that, starting in the 15th century, various families had begun to exclude marriages with women of burgher rank, knightly rank, or even of newly titled comital (neugräflich) families. It should be noted that the emperor regularly struck down clauses against marriages to women of knightly rank when the house laws were presented for his approval. And the great variety in clauses belies any emerging custom regarding misalliances. By the early 18th century, a firm norm had not yet emerged, by custom or imperial law. The marriage of duke Anton Ulrich von Sachsen-Meiningen to Philippina Cäsarea Schurmann, her elevation to the rank of Reichsfürst on 21 Feb 1727 with succession rights for her existing children, and the resulting outcry from the higher nobility, led to the the Wahlkapitulation of 1742 (the children's rights were rescinded in 1744). (§223).
The circumstances surrounding the emergence of an imperial prescription on misalliances shows that a convergence of the various opinions and desires could hardly have come about in the short period of time that led to the Wahlkapitulation. The proposal of many princely families that marriages of their male members with women of a rank lower than imperial counts was not accepted, and only a rather imprecise wording was adopted. The emperor promised that he would not "confer the paternal titles, honors and dignities to those issued from a undisputably notorious misalliance of an immediate house, to its detriment, much less declare them to be among the true inheritors without their consent, and ebenbürtig and apt to succeed; and where the same has previously taken place, to hold such as null and void." The opinions of publicists have become even more confused, some declaring as misalliance any marriage of a member of a reichsständisch family with women of any other rank, others only a marriage with a non-noble, yet others considering the latter marriages not necessarily misalliances. (§224).
When one considers the wording in the context of the previous discussions, one must recognize the following points.
In most ruling houses, issue from an ebenbürtig marriage is a requirement for succession rights, either through house laws or through constitutional clauses (house laws: Bavaria, Würtemberg, Hannover, Saxony, S-Coburg-Gotha; constitutions: Bavaria, Saxony, Hannover, Würtemberg, Kurhessen, GD Hessen; in Baden, it is required only for succession in female line) . But only the Hanover house law of 1836 and the house law of Saxe-Coburg-Gotha of 1855 define exactly the term.
Hannover: "Als ebenbürtig wird diejenigen Ehen betrachtet, welche Mitrglieder des Hauses entweder unter sich abschliessen, oder mit Mitgliedern eines anderen souverainen Hauses, oder aber mit ebenbürtigen Mitgliedern solcher Häuser, welche laut Art. 14 der deutschen BundesAkte den Souverains ebenbürtig ist."
Sachsen-Coburg-Gotha: "Hinsichtlich der Ebenbürtigkeit der Ehe verbleibt es zunächst bei den in dem Testamente des Herzogs Franz Josias v. 1 Okt. 1733 enthaltenen Bestimmungen, denen zufolge seine Nachkommen sich an keine andere als Fürstliche oder gut Gräfliche Häuser und Familien verheirathen sollen."
In the strong sense, marriages with members of other sovereign houses must be counted as ebenbürtig. Article 14 of the German Bundesakt of 1815 maintains the right to Ebenbürtigkeit for the families mediatized since 1806. One must also add: members of families mediatized before 1806; families given the same rank by decisions of the Bundesversammlung (von Pappenheim in 1831, von Rechberg, von Bentinck in 1845); from evident practice, members of families having lost their thrones (Wasa, Bourbon); individuals who are so recognized by the agnates (since the exclusion of the issue of misalliances is established in their favour, they have the power to waive it).
When no explicit Ebenbürtigkeit requirement exists in the house laws, the pre-existing law applies (§225). Practice shows that marriages with women from immediate families that possessed territorial sovereignty without Reichsstand are accepted as ebenbürtig.
In cases where there is a doubt over a marriage, the following rules apply: even where strict rules are applicable, the matter does not depend on pedigrees, that is, on the ability to prove upper nobility on both paternal and maternal sides for a certain number of generations; the recognition of a marriage as ebenbürtig cannot be retracted; the recognition can occur implicitly; a child of an ebenbürtig marriage is ebenbürtig for any family of same rank as that of his mother or ancestor; no one can reject as unequal a marriage of the same nature as that of his parents.
In the German Bund there is no court where such disputes can be resolved;
but it is possible for the member states to take action in the Bundesversammlung
if a dispute threatens the political order. For the local nobility and
for mediatized families the courts of the state to which they belong have
Addition from: Hermann Rehm: Modernes Fürstenrecht. München: J. Schweitzer Verlag, 1904.
(§17: Ebenbürtigkeit. pp. 151-179).
Membership in a sovereign family requires not only issue from a marriage valid in civil law, but also an equal marriage. This requirement of princely law has been maintained by articles 57 and 58 of the Einführungsgesetz of the civil code. If the marriage is unequal, "der Kind folgt der ärgeren Hand," that is, derives his rank from the lower-ranked parent. The recent house laws have made this explicit (Sachsen, Württemberg, Oldenburg, Koburg-Gotha).
princes and Edlen (free lords) had not forgotten that most of the knightly families came from ministerial origins. Although the ministerials had cast off their status as unfree in the 13th century, the princes and free lords raised the objection of inequality against marriages with knights, and also with free Bürger and peasants, whereas previously only the unfree were deemed unequal. For this reason the upper nobility called itself "semperfrei". But the memory of these unfree origins disappeared after the 15th century. The principle of equality of marriage of the upper nobility in the modern era (17th and 18th c.) is disconnected from that of the 14th century, because the latter was abolished by the reception of Roman law as the general law of the Empire in 1450-1550. In the 16th and up to the second half of the 17th century, the general principle, almost without exception, is that a free woman enjoys the rank of her husband, and so do her children. From the second half of the 16th century, and particularly in the first half of the 17th century, specific house laws of the upper nobility reintroduce the requirement of equality. The jurisprudence and after 1650 the literature begin to show that, in houses of imperial rank (Reichsstand), only equal marriages entailed succession rights. This became general by the mid-18th century. What is the source of this new law?
Even within the upper nobility, there was a big difference between the Reichsfürsten, who for the most part had a single vote each (56 in 1789; another 12 princes shared 5 votes), whereas the counts and barons belonged to counts' benches (Grafenbänke) and 104 shared 4 votes. Correspondingly, in the 16th century we see princely families restricting marriages to other princely families (such as the will of duke Johann Wilhelm of Saxony, founder of the Ernestine line, one of the oldest examples of equality requirements). The other reichständische families were not in an economic position to restrict their marriages in the same way, and allowed marriages with the lower nobility, but began to exclude marriages with Bürger families in the mid-17th century.
With the establishment of strict allocation of votes in the Reichstag, a strong distinction came into being between old nobility (pre-1600: altfürstliche, altgräfliche) and new nobility (neufürstliche, neugräfliche). However, only the old princely families incorporated that distinction in their equality requirements. Neither comital nor new-princely families excluded marriages with the lower nobility.
Finally, by 1751 there were no more barons in the Reichsstand (the last were the Freyberg). On the other hand, the emperor created new titles: within the Reichsstand, by elevating counts to princes (reichsständische Titularfürsten), outside of the Reischsstand by creating princes, counts and barons. From the mid-18th century the former Reichsritter started using the title of Reichsfreiherren.
1.a) For all families of the Reichsstand, marriages with non-nobles were unequal.
1.b) Only for electoral families and altfürstliche families were marriages with families outside the Reichsstand (even those with the title of imperial prince, count or baron) considered unequal.
2) Marriages of members of the neufürstliche families (post-1600) and the reichsgräfliche families with the lower nobility are equal. Examples of valid marriages of Reichsgrafen with the lower nobility are not rare in the 18th century.
D. Particular house laws either weakened or strengthened this general principle: some old princely families allowed marriages with the lower nobility with title of count or higher, either by law or custom. On the other hand, new princely families, or comital families sometimes excluded the lower nobility below the rank of baron or count.
Morganatic Marriages (§227)
In the private law of princes in Imperial times, members of reichsständische families could enter into "morganatic marriages" (Ehe zur linken Hand, matrimonium ad morganaticam, ad legem Salicam; the word morganatic comes from "Morgengabe", dower, since the children's claims are reduced to their mother's dower). The same is true of members of sovereign families of the 19th c. (although they are subject to consent of the head of house, if that consent is required of marriages by the house laws). A morganatic marriage is a marriage whose contract specifies that the spouse and children cannot enjoy the rank and status of the father, and have no succession rights to the throne and to the estates of the ruling house. The claims of the children are reduced to what the mother's dower and inheritances from her family. The status and title of the spouse and children are specified in the contract.
Morganatic marriages appear to have been in use among the Franks. The first appearance is in Lombard feudal law (Liber feudorum, II F 29), where it is cited as a Milanese custom. Examples of its use in Germany appear in the 14th c. It was often used in the case of second marriages, so as not to diminish the inheritance of the issue of a first marriage or to prevent excessive fragmentation of the family estates. One finds house laws or testaments requiring younger sons who have not become clerics or cannot find a rich marriage to enter only into morganatic marraiges (e.g., testament of duke Adolph Friedrich von Mecklenburg, 1654). In lombard feudal law, children of a morganatic marriage are excluded from all fiefs in all cases. But for allodial estates, they are excluded only if there are children of a non-morganatic marriage; they have priority over the relatives of their father.
By the Wahlkapitulation of Leopold II (1790), the clause of the Wahlkapitulation of 1742 for the issue of notorious misalliances was extended to the issue of marriages that had been declared morganatic from the start.
Practice of morganatic marriages (§228)
Dowries etc (§229)
No specific law developed, since most estates of ruling families were either fiefs, patrimonies, or under fideicommis, thus already subject to specific rules. For the rest, marriage contracts followed the practices of the German nobility on dowers, dowries, etc.
Personal position of the spouse (§230)
The wife of a sovereign, becomes a subject of her husband and falls under his familial authority; the same goes for wives of princes, and for husbands of ruling princesses. The wife of a sovereign shares his rank, title and dignities. The title of the husband of a princess ruling in her own right is specifically set by a law.
Catholic princes have no more rights than other members of the Catholic church: there is no divorce, at most is there separation (separatio quoad thorum et mensam), or annullment. (marriage of Charlotte Auguste of Bavaria with the crown-prince of Würtemberg in 1814). In Protestant families, which did not consider themselves bound by old canonic law or the council of Trent, and did not regard marriage as a sacrament, divorce was seen as possible not only for the reasons recognized by protestant church law, but also divorce by mutual consent (divortium bona gratia). This (rare) assertion contradicts the general teachings of protestant churches on divorce. For the ruling families of the 19th c., only the general grounds for divorce identified in protestant church law can be seen as valid. The question of who is the competent judge in disputes over marriages was already very controversial in Imperial times. Some jurists considered that the local ruler (Landesherr) was competent; others considered that the Emperor was the final arbiter, although usually under the form of a commission drawn from other protestant families (the Emperor being usually a Catholic). In practice, a wide variety of solutions were used, typically involving the appointment of an ad-hoc tribunal or consistorium. Among 19th c. house laws, only Würtemberg, Hanover, and the kingdom of Saxony make explicit provisions. (§231, §268).
Legitimation of children: by rescript (§232)
Legitimation by subsequent marriage (§233-235)Since the 18th c. one finds in the legal literature the assertion that children legitimated by subsequent marriage are excluded from succeeding to sovereign titles and corresponding estates (Pütter, Moser Familien Staatsrecht 2:855; according to Zöpfl, the eligibility of these children was unquestioned in the 15th and 16th c.). But there is no generally binding law or principle of common law, nor any general custom to that effect. What one finds, is that a number of families have excluded such children through specific clauses in their house laws. But, in common law, there is no difference between ruling families and the rest of the nobility, and until the 18th c. the literature does not treat them separately in this respect. (§233).
Until the 13th c., the old sources of German law (e.g., Sachsenspiegel) without doubt confer on children legitimated by subsequent marriage the succession rights of children born in wedlock. The Sachsenspiegel explicitly states (c. 377) that such children can inherit all estates, feudal as well as allodial. These prescriptions were reinforced by the reception of Roman law in German law. The Lombard law (Liber Feudorum, II LF 26 §10: "Naturales filii, liceat postea fiant legitimi, ad successionem feudi nec soli nec cum aliis admittuntur") received as subsidiary source of feudal law in the 15th c., does exclude them (as well as children legitimated by rescript; note: there was a scholarly dispute over whether the text of the LF refers to children born out of wedlock or children of an unequal union). But the canonical law view of legitimation prevailed and the LF was seen to apply only to legitimation by rescript. (§234).
Practical law. Legitimated children are apt to succeed unless specific hause laws or regional laws, family compacts or entails specify otherwise. That is the case, for example, for the Austrian Pactum successorium of 1703: "in omne aevum valituram legem dictamus ut in … Nostris Regnis et provinciis hereditariis successio Marium sanguinis nostri per lineam masculinam ext legitimo matrimonio progenitorum, non legitimatorum, omnibus feminis … preferatur." The word "legitimate" without other qualification should be understood to include legitimated by subsequent marriage, since common German law does not differentiate between the two (e.g., in the Golden Bull of 1356). However, where the house laws or constitution require issue from a marriage contracted with the consent of the head of family, the question of the ability to succeed for children legitimated by subsequent marriage can have no practical meaning. That is also the reason why modern house laws do not mention such legitimated children.
In Imperial times there was no generally binding law that prevented a lord from a reichsständisch house from adopting. For allodial lands and family patrimony, the principle that the adoptee could not come before heirs in blood was evident; for feudal lands, the adoptee was excluded unless the overlord granted the fief to him again (I LF 26, §8: "adoptivus filius in feudo non succedit"). Adoption was rarely used in any case. A sovereign ruler who was the last of his line and is not limited by representative estates could undoubtedly adopt a successor for his allodial lands; the approval of the Emperor was required to the degree that titles and dignities bestowed only by the Emperor were involved. There are examples of grants of titles by the Emperor that contain the provision that the grantee or the last of his line can adopt a successor and pass the titles to him (count of Rantzau-Breitenburg, 16 Nov 1650; count of Aldenburg, 15 July 1653; etc). Adoptions have also been used to avoid forseeable longlasting regencies (the Elector Palatine Friedrich adopted his nephew Ludwig, son of his mentally ill brother Philipp). Adoption is today seldom used. In houses that require consent for marriages, adoption would also require consent of the head of house. In countries with constitutions, so would the consent of the parliament. Several house laws explicitly forbid adoption (Bavaria, Saxony).
In Imperial times there was no general rule about the majority age. The common-law limit was the roman-law limit of 25. In areas of Saxon law the limit was 21. For hereditary princes in electoral houses (the Kurprinzen) the age limit was set by the Golden Bull to the 18th year. Even today there is no common rule on majority age. The formerly electoral houses have retained the 18-year limit, and have been imitated by others (age 18 in Bavaria, Saxony, Prussia, Hannover, Electoral Hesse, Würtemberg, Baden, Braunschweig, Oldenburg; age 21 in Sachsen-Meiningen, Sachsen-Altenburg, S-C-G, Schwarzburg-Sondershausen, Anhalt-Bernburg, Waldeck, Reuß Jr). Where 18 is the limit, it is usually 21 for the other princes. In Imperial times the Emperor's confirmation was required for an emancipation declaration (venia aetatis), and it was considered also required for any reduction of the majority age to less than 25. Nowadays the head of house is free to make such a declaration unless the constitution explicitly or in spirit limits his power to do so.
Guardianship and regencies (§238-246)
Succession to the throne (§247)
The system of hereditary succession has developped gradually. It originates from the notion that a reichsstaändisch family owned certain property rights over the lands that it ruled. For allodial lands the hereditary character was never doubted. It was based on the principles of ancient German law on the inheritability of real estate (echtes Eigenthum), in particular noble patrimony (adelige Stammgüter). Here the priority of male line over female line was recognized, as well as the partition of the allod between heirs of same proximity.
For imperial fiefs which had the character of functions (Fürstenamt) the Empreror tried to fight the hereditary character, or at least the partitioning, but was not successful (I Feud. 13: "In feudo comitatus vel marchiae, vel aliarum dignitarum non est successio…sed hodie hoc usurpatum est"). Originally the reciprocal succession rights of the participants in a partition were considered to be wholly taken care of, preserved?. Later to protect those rights, the agreement of the overlord to the partition was sought and the joint investiture was introduced.
The first positive disposition against partitions appears in the Golden Bull, in relation to the electoral votes as well as the rule of the electoral lands. Both had to devolve by primogeniture. Lands which a prince held in fief from another prince or from a foreign crown were passed according to the general feudal principles unless the letters of investiture stated otherwise. Since the 14th, and even more since the 15th and 16th c., it was increasingly seen as desirable for many princely houses, especially the larger ones, to maintain the importance of the family by preserving the family possessions whole. This goal was reached through family compacts and wills which turned the various family possessions into an impartible fideicommis. As a result, the introduction of primogeniture became increasingly common. In this respect one gathers hoe far Roman law had penetrated this aspect of law, from the fact that Imperial confirmation of the curtailment of the rights of the younger sons was seen as needed, and from the frequent designation of the eldest son as haeres ex asse in wills.
1) General character of the succession to the throne (§248)
All succession to the throne by right of birth, whether arising from law, custom, family pacts or fideicommis, share the same basic character which is found for the succession in all German noble estates, fiefs and fideicommis. The succession in German law is not an expression of the legal personality of the predecessor, and the call of the successor is not the exercise of the deceased's will as in Roman law, but rather it is the entry into possession of the crown open by the death of the predecessor, on the basis of a preexisting right. Succession to the throne is also a singular succession, as opposed to the Roman law universal succession. Succession by right of birth is exclusively by virtue of descent from the first holder of the crown; collateral heirs are called only if they descend from him. The same is true for the ascendents of the last holder. The priority of male lines over female lines of descent is generally recognized in German ruling families. As with every germanic succession to real estate, succession to the throne has two main effects: Wartrecht and Anfallsrecht (saisine). Wartrecht means that the heir has a right to the crown that cannot be denied to him by any unilateral act of the predecessor; there can be no disinheriting in the sense of Roman law. Anfallsrecht means that the heir is put in immediate possession and does not require a recognition of the inheritance as in Roman law.
2) Capacity to Succeed (§249)
A positive disposition on the requirements for succeeding existed in Imperial times only in the Golden Bull: legitimate descent, lay status, and physical and mental fitness. The same came to be seen as required for all princely families, and today are still considered as the common-law requirements. The only dispute is on the laicity requirement. One should note that the reason why the upper nobility placed so many of its younger sons in the clergy was to remove them from competition for the family estates. A number of house laws stipulated that, in the absence of other heirs, the clerics were allowed to inherit on condition that they returned to lay status, something which was easy for Protestants but required papal dispensation for Catholics.
Further on the laicity requirement
Hermann Rehm, Privatfürstenrecht (1904), p. 290:
"No implicit renunciation to the status of member of a princely family is to be assumed as a result of entry into an order or religious profession. For, in modern law, the taking of vows fail to have effects for the secular world. See Friedberg, Lehrbuch des Kirchenrechts, 5th. ed. § 88 VI, and Störk: Austritt etc. p. 32f."
Hermann Schulze, Das Preußische Staatsrecht auf Grundlage des deutschen Staatsrechts (1888), p. 187:
"To succeed in the electorates, the Golden Bull of 1356, Chap. VII, §2 and 3, explicitly required lay status, in accord with general feudal law (Liber Feudorum, II F 26 §6). Concerning the remaining imperial lands, the question whether a cleric could succeed, particularly of the higher ranks, was controversial. The later practice of imperial courts inclined to the advantage of the clerics. (footnote: Moser's Familien-Staats-Recht, Teil I, S. 23ff. Pütter's Reichsfälle,band II, Theil 3, S. 552, S. 574, dessen Beiträge zum Staats- und Fürstenrechte, Theil II, S. 1439. In 1770 a cleric prince of Salm inherited with his brother and alternated the vote in the Imperial Diet and the Circle Diet. In 1772 a bishop of Speier, born Limburg-Styrum, inherited the estates of his line.) Today the markedly secular character of the state and the necessary independence of the state's power demand the secular status of the supreme office holder of the state. The incumbent spiritual duties and the obedience toward ecclesiastical superiors, particularly the roman see, make every catholic priest ineligible to succeed. Since the evangelical church knows neither the difference between cleric and lay, nor the indissoluble character of priesthood, such an exclusion is not pertinent for an evangelical cleric."
In older as well as more recent house laws, the requirements were increased with the addition of birth from ebenbürtig, legal, authorized marriages. Religious requirement exist only in the constitution of Wwürtemberg (the king must be a Christian) and S-C-G (the regent must be a protestant). Family pacts requiring the heir to belong to a specific religion were considered invalid in Imperial times.
The inability to succeed for those who already possess another crown is usually expressed. There are variations on this requirement, whether it causes total exclusion (Baden), partial exclusion (Oldenburg: no foreign crown, S-C-G: except for English king in the absence of any other heir), or only places some restrictions such as passing throne to a younger son (Bavaria), consent of parliament (Oldenburg for a German crown, Schwarzburg-Sondershausen, Prussia). The inability to hold office or position in a foreign state is similar, although that is often tolerated in smaller states for offices in other German states, or sitting in Parliament by right of birth (Hannover, for the British parliament). Since 1815 it is usually held that the sovereign cannot at the same time be subject or vassal of another sovereign, although there is the example of the duke of Braunschweig giving feudal homage to the king of Prussia for the lordship of Oels in Prussian Silesia (1862).
Physical and mental inability to succeed (§250)
Succession in male line (§251)
I. In the reichsständische families in which no specific order of succession had been introduced, such as primogeniture (only the seniority of the line is considered) for electoral families, or majorat (degree is considered first, then age), seniorat or minorat (only age is considered), the general applicable law was that based on Lombard feudal law. II. The principle was that succession was determined by the relation with the last possessor.
III. There were two classes of successors:
Note: Rehm disagrees.
Female succession: admissibility (§252) and basic principles (§253)
I. In early times, when government was seen as a form of office, female lines were obviously excluded from succesison. II. But, since most old German laws (lex salica, Sachsenspiegel, Schwabenspiegel) only saw a more or less restricted priority of the male line for succession to allods and patrimony (Stammgüter), female lines came to be seen as having a subsidiary right after extinction of the male line for allods, where government was seen as a characteristic of ownership. III. This view was reinforced by the growing influence of Roman law, which made no distinction between male and female heirs. Adhering to the principle of male-line priority came to be seen as due regard to old German law, and subsidiary rights of female lines to succeeding to government, unless excluded by house laws. IV. Female lines also could succeed in so-called female fiefs (Weiberlehen) and common fiefs (gemeinen Erblehen, inheritable according to common civil law). For example, the duchy of Austria was granted by Friedrich I in 1156 as female fief: "et si dux Austriae sine herede filio decederet, idem ducatus ad seniorem filiam, quam reliquerit, devolvatur". V. But for fiefs the female line was excluded (I Feud. 8. pr.). VI. Today, all German thrones are allodial, and female lines must be considered as having a subsidiary right after extinction of all male lines. This is recognized explicitly in a number of constitutions (Bavaria, Baden, Würtemberg, GD Hessen, Saxony, Hannover, Waldeck, Schwarzburg-Sondershausen). VII. Only a few constitutions explicitly exclude them (Oldenburg, Kurhessen). Several constitutions are silent on this point (Prussia 1850; also, those states ruled by branches of a family, as the ducal Saxon families, Reuß, Anhalt; or those where a succession pact provides for the extinction of the male line).
I. In Imperial times the principles were derived by analogy to those ruling the order of succession in male lines, or from feudal law in the case of female fiefs. II. The same principles are applicable to current ruling houses and are generally recognized by the constitutions. They are those applicable to the male line unless specific dispositions are made (Bavaria, Braunschweig), because upon succession the woman and her descent are treated as if she had been a male, and her descent agnatic, in the first place. III. Unless specified otherwise, the (eldest) daughter of the last male has priority over the other women and their descendents, particularly those passed over in previous successions (so-called Regredienterbinnen). It does not matter whether these other women have renounced their rights or not. (This is not the case for estates or property that is ruled by allodial rights, or by feudi feminines promiscues or fiefs inheritable according to common law: in the absence of male heirs, "earlier heiresses" (the Regredienterbinnen) shared with the daughter).
IV. In default of a daughter, succession passed to women in collateral lines and their descent, with primogeniture where applicable and division otherwise. V. The exclusion of Regredienterbinnen is explicit in those recent constitutions that deal with the matter.
But, for the determination of the next heir in default of daughters, one finds two different systems in the constitutions.
VI. In some constitutions (Bavaria, GD Hessen, Saxony) it is provided that women have rights after extinction of the male line only if no succession pact (pactum confraternitatis, Erbverbrüderung) is in existence at that time. This differentiates female succession from male succession in that, in the former, the female line has Anfallsrecht (it succeeds ipso jure when the requisite circumstances are met) but not Wartrecht (its right can be denied by unilateral action of the last male). On the other hand, when there is no explicit restriction of the kind in the constitution, one must assume that the rights of females cannot be set aside by a succession pact.
VII-X. When a woman succeeds, she becomes regnant, by common law as well as the explicit prescriptions of those constitutions that deal with the case (Bavaria, Würtemberg, GD Hessen, Saxony, Braunschweig, Hannover, Schwarzburg-Sondershausen). Once female succession has occurred, the law of succession is the same again as in the original family. Female succession ratione transmissionis (for the purpose of transmission), where the claim can pass through a female but must go to a male descendent of hers, exists only in Baden. In Bavaria, if the woman is wife of a foreign monarch, she must appoint a viceroy. Those constitutions that forbid the ruler to be ruler or heir apparent of another state require a female heir who is at the same time ruler of another state to renounce for her second-born son (Bavaria).
XI. Agnatic mixed-female succession (successio promiscua) as in England, Spain, Denmark since 1665, does not exist in any German state. It did exist for so-called "fuldischen Lehen", which occasioned in the 18th c. a famous dispute between the Elector Palatine and the counts of Hanau over the fief of Otzberg; the Reichskammergericht upheld the mixed succession. XII. The dispute over the succession of Holstein created by the letter of Christian VIII of Denmark of 1846 was solved by the London Conference Protocol of 8 May 1852. The duchy of Lauenburg, formerly an imperial fief and ceded to Denmark by a treaty of 1815, was also subjected to the same succession rule as the kingdom of Denmark.
Succession by testament (§254)
I. Testamentary clauses regarding succession were possible in Imperial times, when the territory was allodial and no successor was at hand who had any rights to it from a fideicommis or from customary-law patrimonial rights. Likewise the first owner was free to dispose of it. II. Feudal lands could be so disposed of only if the original investiture allowed it (such as the duchy of Austria, by the terms of the 1156 privilegium, confirmed in 1530), or if the overlord gave his assent. (For larger imperial fiefs the assent of the Reichstag was also necessary). III. Testamentary clauses by a ruling lord modifying the order of succession were seen as unilaterally enacted house laws and their validity depended on the consent of the agnates, consent of the emperor, or family observance and the degree to which it had been influenced by Roman law. IV. Whether the forms of Roman law had to be observed by the testator was disputed (in the case of the lord himself; members of the family were bound to do so). V. With the end of the Empire the principles applicable to allods remained unchanged. Nowadays there can only be question of the right of the last of his line to dispose of the crown by testament. But in constitutional monarchies, the absence of explicit mention of such a right must be taken to preclude it. VI. In any case no German crown can pass to a foreigner by testament without the assent of the Bundesversammlung.
Succession by pact (§255)
A pactum confraternitatis or Erbverbrüderung is a pact which creates reciprocal rights of succession between families. The right to do so for allods was never doubted. For fiefs, the assent of the overlord was required. (An article in Leopold I's Wahlkapitulation of 1658 was regarded as a global assent to all pre-existing pacts of reichsständische families. Karl VI's Wahlkapitulation of 1711 had the emperor promise to agree to such unions on request.) II. Under the basic view of successoral pacts in German law, these pacts were similar in that the first owner, or the last of his line, had the right to dispose of his territory; as for other cases, the pacts were allowable with the assent of all those who possess any succession rights, as with the establishment of succession laws. III. These pacts were also commonly used at the time of a successoral division, because a complete division (Todtheilung) deprived each line of any claims on another line's estates. IV. They are also found in cases where female succession was excluded, so as to provide for the case of extinction of the line. Then, only the consent of the agnates would be required.
Succession by joint or entailed investiture (§§256-9)
Impending extinction (§260)
Provisions for younger sons and daughters (§261-2)
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